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NAVY | DRB | 2001_Navy | ND01-00860
Original file (ND01-00860.rtf) Auto-classification: Denied


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

ex-AMSAR, USN
Docket No. ND01-00860

Applicant’s Request
The application for discharge review, received 010615, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region. The applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020110. 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 discharge was inequitable because it was based on one isolated incident in 36 months of service with no other adverse action.
We came from the Gulf war and I needed time off. I applied for leave as regulation. I was denied. I had 90 days on the books. I took 30 days anyway. I spent 10 months aboard a ship with 6,000 men I needed a brake. If this is not what my record says then I don't know what my discharge was for.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     890626 - 900624  COG

 Period of Service Under Review :
Date of Enlistment: 900625               Date of Discharge: 930525

 Length of Service (years, months, days):

         Active: 02 10 22
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 49

 Highest Rate: AMSAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.26 (3)    Behavior: 2.93 (3)                OTA: 3 .26

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, NUC, SASMw3b*, KLM, SSDR(2 ND )

Days of Unauthorized Absence: 12

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 :

920917:  Retention Warning: Advised of deficiency (Your violation of UCMJ, Article 134 in that you made and uttered five worthless checks by dishonorably failing to maintain sufficient funds during July and August), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.


920923:  NJP for violation of UCMJ, Article 86: (2 Specifications), Spec 1: UA, failure to appear at appointed place of duty on or about 0730, 920921; Spec 2: UA from 0730, 920903 to 0700, 920909 (6days).
         Award: Forfeiture of $400.00 per month for 2 months (suspended for 6 months), restriction to NAS CECIL FIELD for 45 days, extra duty for 45 days, reduction to E-2 (suspended for 6 months). No indication of appeal in the record.

921216:  NJP for violation of UCMJ, Article 86: (2 Specifications), Spec 1: UA from 921208 to 921209(1day); Spec 2: UA from 921211 to 921216(5days), violation of UCMJ Article 134: Check, worthless, making and uttering checks for lawful currency, the total sum of $510.00 and thereafter dishonorably failed to maintain sufficient funds.
         Award: Vacation of punishment awarded at mast held on 920923 only on RIR to E-2, restriction to NAS CECIL FIELD for 45 days, extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
930107:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by violation of UCMJ, Article 134 (Check, worthless, making and uttering by dishonorably failing to maintain funds).
930308:          Applicant advised of his rights and having elected to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
930406:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

930430:  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 930525 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).

Issue 1. 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. Under other than honorable conditions is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. T he applicant’s service was marred by award of nonjudicial punishment (NJP) for offenses triable by court-martial on two occasions and an adverse counseling entry on another occasion. The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for a characterization of service under honorable conditions. An upgrade would be inappropriate. Relief denied.

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. Relief denied.


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 " 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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