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NAVY | DRB | 2001_Navy | ND01-00206
Original file (ND01-00206.rtf) Auto-classification: Denied


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

ex-AA, USN
Docket No. ND01-00206

Applicant’s Request
The application for discharge review, received 001207, requested that the characterization of service on the discharge be changed to Honorable. 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 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

 1. I had previously received an Honorable Discharge on April 14, 1984 from active duty and April 17, 1986 from the Active reserves.

2. I Average evaluation rating of 3.6 throughout my enlistment.

3. When I was discharged I had gotten in trouble for going "UA" just after being told by doctors that I would be permanently disabled due to injuries incurred while on active duty. I was under an unusual amount on stress 2 nd duress and made an unfortunate but understandable mistake.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Service Related Documents (48pgs)
Medical Related Documents (2pgs).

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        810501 - 840414  HON
         Inactive: USNR (DEP)     810423 - 810430  COG
                  USNR (DEP)      860418 - 860608  COG

 Period of Service Under Review :
Date of Enlistment: 860609               Date of Discharge: 880226

 Length of Service (years, months, days):

         Active: 01 08 21
         Inactive: None

 Age at Entry: 23                          Years Contracted: 2

Education Level: 11                        AFQT: 66

 Highest Rate: AO3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (1)    Behavior: 3.80 (1)                OTA: 3.60

Military Decorations: None

 Unit/Campaign/Service Awards: SSDR

Days of Unauthorized Absence: 23

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 :

860609:  Reenlisted at U.S. Navy Recruiting District for 2 years.

 870723:  Retention Warning: Advised of deficiency (During this current enlistment, you have incurred a military infraction for which you were punished under the UCMJ, violation of article 92, disobedience of an order; violation of article 86, unauthorized absence (2 specifications)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

870724:  NJP for violation of UCMJ, Article 86: (2 Specs), Absent from his unit on or about 0730, 870714 to 1125, 870714, and 0730 870716, to 1015, 870722 [6days/S], violation of UCMJ Article 92: Fail to obey a lawful order on or about 870624.
         Award: Restriction for 10 days (suspended for 6 months), extra duty for 10 days, reduction to E-2. No indication of appeal in the record.
880121:  Waiver of right to refuse Trial by Summary Court-Martial.
         
880122:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86 (2 Specifications), Spec 1: UA from on or about 0600, 870819 until on or about 2045, 870823 [4days/S], Spec 2: UA from 0730, 870831 to 0730, 870902 [2days/S], Spec 3: UA from on or about 871026 until on or about 871112 [17days/S]. Charge II: violation of the UCMJ, Article 91: Willfully disobey an order from his superior petty officer on or about 870814. Charge III: violation of the UCMJ, Article 134: Break restriction on or about 870823.
         Finding: to Charge I, II, III and the specifications thereunder, guilty.
         Sentence: CHL for 30 days, forfeiture of $300.00 pay per month for 1 month.
         CA action 880201: Sentence approved and ordered executed, forfeiture shall apply to pay becoming due on and after the date of this action.
880203:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense.
880203:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ, Article 27B, elected to waive all rights.
880210:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense.

880215:  Released from confinement and restored to full duty status. Retained onboard for further disposition and administrative processing.

880216:  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 880226 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).

Issue 1. The applicant states he previously received an Honorable discharge on April 14, 1984 from active duty and April 17, 1986 from the Active Reserves. The Board determined that the applicant’s Honorable discharges for prior service have no bearing on the characterization of service for his final enlistment. Relief denied.

Issue 2. The applicant states his average evaluation ratings were 3.6 throughout his enlistment. The Board determined the applicant’s marks alone would warrant a higher discharge characterization, if the misconduct had not occurred. Unfortunately, the applicant’s misconduct did occur and his discharge characterization was proper and equitable. Relief denied.

Issue 3. The applicant states he was under an unusual amount of stress and duress and made an unfortunate but understandable mistake. The Board agrees the applicant made an unfortunate mistake going UA but equally as unfortunate was his violation of UCMJ, Article 91 (willfully disobeying a lawful order) and Article 134 (breaking restriction). The applicant was punished through Summary Court Martial, then properly and equitably discharged. Relief denied.

 The following is provided for the benefit of the applicant. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the applicant’s enlistment. Additionally, 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 civilian life, subsequent to leaving the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct. The applicant did not provide any of these documents. He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Legal representation at a personal appearance hearing is highly recommended but not required.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A), effective 15 Jun 87 until
10 Jan 89, Article 3630600, SEPARATION OF ENLISTED MEMBERS 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 92 (failure to obey a lawful order) 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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