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NAVY | DRB | 2001_Navy | ND01-00162
Original file (ND01-00162.rtf) Auto-classification: Denied


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

ex-DCFN, USN
Docket No. ND01-00162

Applicant’s Request
The application for discharge review, received 001127, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance discharge review before a traveling panel closest to San Francisco, CA. The applicant listed a civilian counsel as the representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area. The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010510. 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 (verbatim)

1. Other than honorable discharge is inequitable because it was based on one isolated incident in 36 months of service with no other adverse action. Mitigating circumstances of post service entry marriage and financial problems and application for hardship transfer or discharge were not properly considered.

2. Other than honorable discharge is improper because it was based on Summary Court Martial conviction for which he was not afforded counsel or properly advised of the consequences of the administrative seperation. The summary court martial did not adjudge a sentence of discharge with other than honorable service.

3. Other than honorable discharge is inequitable because at the time it was given he was immature and under duress concerning his marriage and financial problems He was not given proper counseling and was incorrectly advised that the discharge would be automatically upgraded after six months.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Job character reference dated October 5, 2000 (2 copies)
College transcript (2 copies)
Copy of DD Form 214.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     900221 - 900603  COG

 Period of Service Under Review :
Date of Enlistment: 900604               Date of Discharge: 930704

 Length of Service (years, months, days):

         Active: 03 01 01
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12 1/2           AFQT: 67

 Highest Rate: DC3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.36 (5)    Behavior: 3.48 (5)                OTA: 3 .64

 Military Decorations: None

 Unit/Campaign/Service Awards: BER, CAR, NUC, NDSM, SASM with Bronze Star

 Days of Unauthorized Absence: 29

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 :

930512:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86.
         Specification: Unauthorized absence from 0300, 1Mar93 to 0700, 29Mar93 (28 days/surrendered).
         Charge II: violation of the UCMJ, Article 87:
         Specification: Missed ship's movement on 1Mar93.
         Finding: to Charge I and II and the specifications thereunder, guilty.
         Sentence: Forfeiture of $608.00, confinement for 30 days, reduced to DCFA.
         CA action 930514: Sentence approved and ordered executed except for the part of the sentence which pertains to reduction to pay grade E-2 and forfeiture of $608.00 pay per month for 1 month is suspended for 6 months.

930512:  Applicant to confinement.

930524:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
930524:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

930605:  Applicant from confinement.

930617:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

930628:  BUPERS 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 930704 under other than 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 the applicant’s issue 1, the Board found the applicant implies that a permissive doctrine exists whereby one in the military is allowed a “single misdeed”. The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record. No such leniency exists in the military. The applicant is responsible for his actions and must accept the consequences of his misdeeds. The Board will not grant relief on the basis of this issue.

 In response to the applicant’s issue 2, the applicant was afforded proper counsel. The Board agrees with the applicant’s statement that the summary court martial did not adjudge a discharge under other than honorable conditions. The decision to process the applicant for discharge was made by the Commanding Officer, which is his right to do. The applicant was properly discharged by BUPERS on 930628 under other than honorable conditions based on the Commanding Officer’s recommendation. No relief will be granted based on this issue.

In response to the applicant’s issue 3, the Board found that the applicant was afforded proper counsel, but waived his rights. There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service. The Board reviews the propriety (did the USN/USMC follow its own rules in processing the applicant for discharge) and equity (did the applicant receive a discharge characterization in keeping with the USN/USMC guidance or was the characterization typical of other service members being separated for the same reason) of each applicant’s discharge. Finally, the Board is authorized to consider post-service factors in the recharacterization of a discharge (what has the applicant done since discharge to become a contributing member of his community and to society in general). At this time, the applicant has not provided any documentation of good character and conduct. Therefore no relief will be granted. 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.

 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. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article missing movement 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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