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NAVY | DRB | 2001_Navy | ND01-00391
Original file (ND01-00391.rtf) Auto-classification: Denied


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



ex-ENFA, USN
Docket No. ND01-00391

Applicant’s Request
The application for discharge review, received 010208, 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. In the acknowledgement to the applicant, he was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington D.C. area. Subsequent to the application/acknowledgement letter the applicant requested a personal appearance hearing and obtained representation by the American Legion.

Decision

A personal appearance hearing discharge review board was conducted in Washington, DC on 010925. After a thorough review of the records, supporting document, facts, and circumstances unique to this case, the NDRB discerned no impropriety but did discern inequity in the characterization of the applicant’s service. The Board’s vote was three of two that the character of the discharge shall change. The discharge shall change to: GENERAL (UNDER HONORABLE CONDITIONS)/Misconduct-Commission of a Serious Offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.       As evidenced by his supporting documentation and testimony, this former member opines that his post-service conduct has been sufficiently creditable to warrant the Board’s clemency relief with recharacterization of his service period to General (Under Honorable Conditions) as authorized under provisions of SECNAVINST 5420.174C, enclosed (1). Paragraph 9.3.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
 Letter from applicant
Copies of character recommendation letters (2)
Copy of employment reference letters (2)
Copy of driving record
Copy of criminal record check
Copy of drivers license
Copy of pay sheet
Copy of corrections officer trainee application
Letter from girlfriend

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     860625 - 860707  COG

 Period of Service Under Review :
Date of Enlistment: 860708               Date of Discharge: 880926

 Length of Service (years, months, days):

         Active: 02 02 19
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 33

 Highest Rate: ENFA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.60 (2)    Behavior: 2.70 (2)                OTA: 2.60

Military Decorations: None

 Unit/Campaign/Service Awards: SSDR

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 :

861218:  Retention Warning: Advised of deficiency (Poor military performance), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

861218:  NJP for violation of UCMJ, Article 92: On 861115 violation of a lawful written regulation by possessing alcoholic beverages under the age of 21, violation of UCMJ Article 128: On 861115 assault upon another service member.
         Award: Forfeiture of $75.00 per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.

880310:  NJP for violation of UCMJ, Article 128: Assault.
         Award: Forfeiture of $100.00 per month for 1 month. No indication of appeal in the record.

880601:  Medical/Psychiatric evaluation diagnosed applicant with a moderate to severe explosive disorder (EPTE), and states, in part that he "could remain a liability and potential danger due to his explosiveness and temper. Recommended for administrative separation as unsuitable.
         
880728:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions [Extracted from CO's message dtd 880808].
880727:          Applicant advised of his rights and having elected not to consult 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 [Extracted from CO's message dtd 880808].

880808:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infraction.

880823:  CNMPC directed that applicant be reprocessed for misconduct due to the commission of a serious offense because member's violation of UCMJ, Articles 92 and 128 are serious offenses which warrant consideration for an other than honorable discharge. Member does not qualify for minor disciplinary infraction because of the serious offenses and also because he was not issued Page-13 Counseling/Warning from parent command.
880909:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
880909:          Applicant advised of his rights and having elected not to consult 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.
880910:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense

880918:  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 880926 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).

After a review of the applicant’s service record and other evidence presented to the NDRB, in conjunction with consideration of the factors listed in paragraph 9.3 of reference (a), it was determined that relief is warranted under equitable grounds. The
Applicant’s service record shows that although his misconduct did violate Articles 92 and 128 of the UCMJ, the punishments awarded by his commanding officer were uncharacteristic of those usually awarded for serious offenses. From the available evidence, the Board determined the applicant’s command did not initially intend to separate the applicant from the military as a result of his two NJPs. Only after the applicant consulted with a psychiatrist, as a result of stress related reactions and depression, was he properly processed for separation in accordance with regulations. The applicant was a below average performer based on his performance marks but also had a below average AFQT. He’s a high school graduate with no record of having completed any college courses. These factors indicate the applicant is doing his best to demonstrate he is, and was in the past, a person of good character, although not suited for military service. He maintains a good employment record at two jobs and regularly provides child support without a court order. Additionally, he has not had any involvement with civil authorities. Accordingly, the NDRB voted to upgrade the applicant’s characterization of service to General (Under Honorable Conditions). The applicant’s military service can not be characterized as Honorable, by any standard. Relief granted.
 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, for failure to obey a lawful order or, regulation, 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 9.3, PROPRIETY OF THE DISCHARGE.

E. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), 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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