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NAVY | DRB | 2001_Navy | ND01-00168
Original file (ND01-00168.rtf) Auto-classification: Denied


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

, ex-YNSA, USN
Docket No. ND01-00168

Applicant’s Request
The application for discharge review, received 001127, requested that the characterization of service on the discharge be changed to general/under honorable conditions. 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 010719. 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, 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. The discharge is improper because of my pre-service civilian conviction, properly listed on my enlistment documents was used in the discharge proceedings.

3. My average conduct and efficiency rating/behavior and proficiency marks were pretty good.

4. There were other acts of merits. For example took time out of my time to do work, finish project and help out the rest of my division.

5. My ability to serve was impaired by my deprived background as cited in a letter from Dr. S____ J. D____, M.A., M.Ed., Ph.D of Behavioral Counseling, Inc., PC.

6. My discharge was inequitable because it was based on one isolated incident in 18 months of service with no other adverse actions.

7. My use of alcohol impaired my ability to serve, I used alcohol on a regular basis do to stress from my other co-workers and other departmental personal.

8. The punishment I got at discharge was to harsh-it was much worse than most people got for the same offense. For example several personal were caught doing the same thing and were given Restriction and Extra Duty and were allowed to remain in the Armed Service after they were transferred to another station.

I would like to Thank You for your time in this matter. And hope that you will find an Upgrade on my behalf.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Copy of Evaluation Report & Counseling Record (2pgs)
Copy of Letter from Behavioral Counseling, INC., PC

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN               None
         Inactive: USNR (DEP)     971121 - 980713  COG

 Period of Service Under Review :
Date of Enlistment: 980714               Date of Discharge: 991217

 Length of Service (years, months, days):

         Active: 01 05 04
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 32

 Highest Rate: YNSN
 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.50 (2)    Behavior: 3.00 (2)                OTA: 2.91

 Military Decorations: None
Unit/Campaign/Service Awards: Navy "E" Ribbon
Days of Unauthorized Absence: None

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

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

 Chronological Listing of Significant Service Events :

991130:  NJP for violation of UCMJ, Article 121: Larceny, violation of UCMJ Article 123: Forgery.
         Award: Forfeiture of $500.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
No Discharge Package Available

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 991217 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 response to applicant’s issue 2, the Board found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure, or discretion associated with his discharge at the time of its issuance, and that his rights were prejudiced thereby. Furthermore, there has been no change in policy by the Navy, or higher authority, made expressly retroactive to the type of discharge received by the applicant. Because the applicant’s discharge packet was incomplete, the Board has to assume regularity in government affairs concerning this case. The Board found that the applicant was properly discharged. Relief will not be granted concerning this issue.

In response to applicant’s issue 3 and 4, while the applicant’s enlisted performance averages were fair, they, and the applicant’s “acts of merit”, do not exculpate him from his violations of UCMJ Articles 121 (larceny) and Article 123 (forgery). Relief denied.

In response to applicant’s issue 5, the letter from Behavioral Counseling dated October 1994, when the applicant was only fourteen years old, does not have much bearing on the misconduct committed by the applicant during his naval service. The Board could not find any official Navy medical documents pertaining to a psychological problem nor did the applicant submit any evidence that his condition existed at the time of his misconduct. The Board will not grant relief on the basis of this issue.

In response to applicant’s issue 6, the applicant implies that a permissive doctrine exists whereby one in the military is allowed an "isolated incident". 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. This is not an issue for which the Board will grant relief.

In response to applicant’s issue 7, the Board does not accept alcohol abuse as a factor sufficient to exculpate the applicant from the consequences of his misconduct. While the Board recognizes that Alcoholism and alcohol abuse are not, in themselves, offenses which constitute grounds for punishment, it reminds applicants who commit offenses while drinking that they are still responsible for their actions. They must accept the consequences of their misconduct or misbehavior, whether committed before or after they received rehabilitation treatment.

In response to applicant’s issues 1 and 8, the applicant committed two violations of the UCMJ. Both violations are serious offenses and could have resulted in a Bad Conduct Discharge. The applicant’s punishment was proper and equitable. In addition, 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. However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (E). Those factors include, but are not limited to, the following: evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided any documentation of good character and conduct. Therefore no relief will be granted. The applicant is encouraged to continue with his pursuits and 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 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 121, for larceny, 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 " afls10.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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