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NAVY | DRB | 2000_Navy | ND00-00841
Original file (ND00-00841.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT

ex-YN3, USNR(TAR)
Docket No. ND00-00841

Applicant’s Request
The application for discharge review, received 000626, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to discharge was personal rather than professional no pattern of misconduct. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010125. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge.

2. Under current standards, I would not receive the type of discharge I did.

3. My average conduct and efficiency ratings/behavior and proficiency marks were good [or pretty good].

4. I received awards and decorations.

5. I received letters of recommendation.

6. My record of promotions showed I was generally a good service member.

7. I had a prior Honorable Discharge.

8. I have been a good citizen since discharge.

9. The punishment I got was too severe compared with today's standards.

10. The punishment I got at discharge was too harsh - it was much worse than most people got for the same offense.

11. I tried to serve and wanted to, but just couldn't or wasn't able to.

12. My command abused its authority when it decided to discharge me and decided to give me a bad discharge.

13. I had applied or tired to apply for a compassionate reassignment but was unfairly denied or told to forget it.

14. I was being considered for a physical disability discharge and was unfairly denied one.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Personal statement from applicant
Copy of Jacksonville Sheriff's Office record check dated July 9, 1998
Copy of applicant's administrative separation package
Statement from applicant
Copy of certificate of training dated September 29, 1997
Copy of assignment of quarters dated September 17, 1997
Copy of leave and earning statement signed May 9, 1997
Copy of certificate of personnel security investigation, clearance and access (3 pages)
Copy of record of disclosure
Copy of check in sheet
Copy of travel voucher (2 pages)
Copy of detaching endorsement to orders
Copy of reporting endorsement to orders
Copy of record of emergency data (3 pages)
Copy of travel voucher summary
Copy of travel claim check off list
Copy of orders dated March 14, 1996 (4 pages)
Copy of National Agency Questionnaire dated July 30, 1992
Copy of temporary lodging expense allowance claim and worksheet
Copy of combined bachelors quarters
Copy of guest receipt from Hospitality Inn
Copy of name change notification (2 pages)
Copy of state of legal residence certificate dated March 22, 1993
Copy of Montgomery GI Bill dated March 17, 1993
Copy of enlistment statement of understanding
Fifty-eight pages from applicant's service record
Copy of transcript
Copy of Bachelor of Science certificate (partial readable)
Copy of diploma dated May 31, 1988
Copy of alteration of birth certificate and acknowledgement of paternity dated September 19, 1989
Copy of birth certificate
Copy of evaluation report and counseling record dated 97Jun16 to 97Dec15, 96Dec15 to 97Jun15 (front page only)
Copy of son's birth certificate
Copy of marriage certificate
Copy of judgment of evidence

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USNR-R            930309 - 970306  HON
         Inactive: USNR (DEP)     920730 - 930308  COG

 Period of Service Under Review :
Date of Enlistment: 970307               Date of Discharge: 980619

 Length of Service (years, months, days):

         Active: 01 03 13
         Inactive: None

 Age at Entry: 26                          Years Contracted: 4

 Education Level: 16                        AFQT: 53

 Highest Rate: YN3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.50 (2)    Behavior: 2.50 (2)                OTA: Not found

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM, NER, NDSM

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

971017:  Retention Warning: Advised of deficiency (Being disrespectful towards senior Petty Officers. Using racial comments towards senior Petty Officers. Scheduling numerous personal matters/appointments during working hours.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
980521:  Report and Disposition of offense(s): Article 91: Insubordinate conduct toward a Chief Warrant Officer, Noncommissioned Officer, or Petty Officer on 1050, 21May98.

980527:  Report and Disposition of offense(s): Article 134: Public records, altering, concealing, removing, mutilating, obliterating or destroying on 1125, 26May98.
980527:  Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.
980526:          Applicant advised of her rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
980528:  Commanding officer recommended discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense. Commanding officer’s comments: (verbatim): "Through numerous informal counseling sessions, in addition to documented formal counseling, YN3 (applicant) has been afforded ample opportunity to improve her professional behavior. Her military relationship, as a Third Class Petty Officer, to senior enlisted leadership has been made very clear to her and she has been encouraged to learn from an exceptionally fair and talented group of co-workers in order to grow professionally and enhance her military bearing. Based on her failure to avoid disrespectful conduct, and the negative impact that her actions have on the morale of an otherwise positive command climate, I recommend that YN3 (applicant) be separated from naval service with a General discharge".

980602:  Commander, Naval Base, Jacksonville directed the applicant's discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 980619 general (under honorable conditions) for misconduct due to commission of a serious offense (A and B). The Board presumed regularity in the conduct of governmental affairs (C). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

 In response to applicant’s issues 1,2,9,10,11,12 and 13, the Board found that the applicant violated UCMJ Articles 91 and 134, both violations being serious offenses. To permit relief, an error or injustice must be found to have existed during the period of enlistment under review. There was nothing in the records, nor did the applicant provide any documentation, to indicate there existed an error of fact, law, procedure, or discretion at the time of discharge. There was no rights violation and no basis for relief. The applicant signed her administrative processing notice on 26 May 1998. The NDRB does not find a general discharge for commission of a serious offense to be harsh. The applicant could easily have received an other than honorable or bad conduct discharge for the same offenses. Relief will not be granted concerning these issues.

In response to applicant’s issues 3 thru 7, the Board found that the applicant’s record of service does not contain enough supporting evidence to warrant a change in her discharge. No relief will be granted concerning these issues.

 In response to applicant’s issue 8, t he NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered. The applicant provided certification of non-involvement with civil authorities as documentation of her post-service. The applicant's efforts need to be more encompassing than those provided. The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record and documentation of community service in order for consideration for clemency based on post-service conduct. At this time the applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted. She is encouraged to continue with her pursuits and is reminded that she is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Relief denied.

In response to applicant’s issue 14, this is not an issue for which the Board will grant relief. Physical disability discharges are the purview of the Physical Evaluation Board not the Naval Discharge Review Board.



Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 97 until 29 March 2000, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE .

B. In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article [e.g., 86, for unauthorized absence for a period in excess of 30 days] if adjudged at a Special or General Court Martial

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT
If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Directive 1332.28 and other Decisional Documents by going online at " afls14.jag.af.mil ".

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023      


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