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NAVY | DRB | 2001_Navy | ND01-00001
Original file (ND01-00001.rtf) Auto-classification: Denied


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

ex-YNSA, USN
Docket No. ND01-00001

Applicant’s Request
The application for discharge review, received 000927, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to UCMJ Art. 134. The applicant requested a documentary record discharge review. The applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010301. 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: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. My undesirable discharge is the result of an unfortunate chain of events and a regrettable, split second error of judgment, on my part. (Explanation in Applicant's letter of 27 January 2000)

2. I was charged with a "serious offense" in a situation where I was clearly a victim of circumstance. (Explanation in Applicant's letter of 6 June 2000)

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of Applicant's Private Pilot license
Copy of DD Form 214 (2 copies)
Applicant's Explanation Letter for Issue 1 dtd 27 Jan 2000
Applicant's Explanation Letter for Issue 2 dtd 6 Jun 2000
 House of Representative B_ O_ ltr of Apr 20, 1994 to RADM W_ J. F_ concerning applicant
House of Representative B_ O_ ltr of May 13, 1994 to the Applicant
Application Acceptance ltr from OPM, Office of Federal Investigations dtd Apr 24, 1995
Character Reference ltr from D_ I. S_, Employer, dtd Sep 15, 2000

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     890223 - 890525  COG

 Period of Service Under Review :
Date of Enlistment: 890526               Date of Discharge: 930716

 Length of Service (years, months, days):

         Active: 04 01 21
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4 (24 months extension)

 Education Level: 13½                        AFQT: 81

 Highest Rate: YN3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.16 (5)    Behavior: 3.28 (5)                OTA: 3.36

 Military Decorations: None

 Unit/Campaign/Service Awards: LOC(2), Shipmates Award, NDSM, Arctic Service Ribbon, SSR, NEM, Enl Sub Breast Insignia

Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

930524:  NJP for violation of UCMJ, Article 110: improper hazarding of vessel.
         Award: Forfeiture of $400 per month for 2 months, extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
920529:  NJP for violation of UCMJ, Article 92: failure to obey order or regulation.
         Award: Forfeiture of $501 per month for 2 months, restriction for 60 days, reduction to E-3 (YNSN). No indication of appeal in the record.
92:      Retention Warning: Advised of deficiency (non-judicial punishment for violation of Article 92 of the Uniform Code of Military Justice), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        

930527:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

930527:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. Commanding officer’s comments (verbatim): "As evidenced by the series of UCMJ violations detailed above, YNSA (Applicant) has demonstrated unreliability, a general disregard for military authority and has zero potential for continued Naval service. This case fully warrants processing under "serious offense". The serious offenses listed above should result in a punitive discharge."

930601:  Applicant advised of his rights, including the right to counsel but he did not indicate whether or not he wanted to consult with counsel certified under UCMJ Article 27B. Applicant elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation. Applicant did not object to the separation.

930607:  By message, Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. Message indicated that the LON was dated 9 Sep 92 and the SOA was dated 14 Sep 92.

930617:  BUPERS requested information concerning the admin board procedures. Requested advise via message or phone if message in error and admin board procedures were in fact used. Advised the command if the admin board procedures not used to re-execute LON and SOA.
930630:  CNMPC directed the applicant's discharge under other than 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 930716 under other than honorable conditions for misconduct due to commission of a serious offense (A). The Board presumed regularity in the conduct of governmental affairs (B). 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 (C and D).

 The applicant’s first issue states: “My undesirable discharge is the result of an unfortunate chain of events and a regrettable, split second error of judgment, on my part. (Explanation in Applicant's letter of 27 January 2000).” While the applicant states the discharge was “the result of an unfortunate chain of events and a regrettable, split second error in judgment,” the Board found the applicant no less responsible for his actions. There is no reason the applicant should not be held accountable for his actions. Relief is denied.

The applicant’s second issue states: “I was charged with a "serious offense" in a situation where I was clearly a victim of circumstance.” The applicant’s service record shows two NJP’s both “serious military offenses,” offenses that warrant punitive discharge if found guilty at court martial. The Board does not agree that the applicant was in any way merely a “victim of circumstances.” The Other Than Honorable discharge accurately characterizes the applicant’s service. Relief is denied.
The NDRB is authorized to consider post-service factors in the re characterization of a discharge. 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, may be considered by the NDRB. The Board did not find the applicant’s post service significant enough to warrant an upgrade. Relief is not warranted.

The applicant requested the reason for discharge be changed to: “UCMJ Article 134.” The Board found the reason for discharge as issued accurately states the reason for the applicant’s discharge. Relief is not warranted.

The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is highly recommended.



Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B. 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.

C. 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.

D. 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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