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NAVY | DRB | 2001_Navy | ND01-00883
Original file (ND01-00883.rtf) Auto-classification: Denied


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

ex-RMSR, USN
Docket No. ND01-00883

Applicant’s Request
The application for discharge review, received 010625, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to Convenience of the Government. The applicant requested a personal appearance discharge review before a traveling panel closest to Fresno, California. The applicant listed the Disabled American Veterans as the representative on the DD Form 293. In the acknowledgement letter to the applicant, 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 020307. 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 and narrative reason 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. The narrative reason for separation of misconduct - commission of a serious offense is not true and is not supported by the true facts of my navy enlistment. I have written a very detailed account of what happened to me in the Navy and all of the sexual harassment that I endured.

2. This bad discharge is not deserved and should not haunt me forever in my civilian life. I am sure that civilian employers and others will prejudice me against opportunities that are available to others.

3. Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review. We ask for the Boards careful and sympathetic consideration of all the evidence or record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant. Respectfully, FSM request a discharge upgrade from her current status of Under Other Than Honorable Conditions to that of General Under Honorable Conditions, and to have the narrative reason changed to the of the convenience of the government. The record reflects that Ms. (applicant) served in the United States Navy from January 12, 1987 to October 1, 1991, at which time she was discharged as noted above for misconduct - commission of a serious offense. The misconduct consisted of assault, drunk and disorderly and communication of a threat on July 15, 1987 and AWOL from July 7, 1991 to August 7, 1991. The charges cities by the Naval Administrative Board and are part and parcel of her charges of abuse, discrimination and sexual harassment. In light of the circumstances surrounding the misconduct we seek equitable relief in the for of General Discharge under Honorable Conditions, by challenging the equity of the current discharge under SECNAVINST 5420.174c, 9.3(2). As we have substantial doubt that Ms. (applicant) would have received the same discharge, if relevant current policies and procedures had been available at the time of the discharge proceedings. In view of the military's current policy's and procedures regarding harassment we respectfully request reconsideration of the current discharge.



Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Copy of letter of appreciation dated October 16, 1987
Copy of Navy Occupation/Training and Awards

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     860507 - 870111  COG

 Period of Service Under Review :
Date of Enlistment: 870112               Date of Discharge: 911010

 Length of Service (years, months, days):

         Active: 04 08 29
         Inactive: None

 Age at Entry: 24                          Years Contracted: 4 (24 months extension)

 Education Level: 14                        AFQT: 27

 Highest Rate: RMSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.36 (5)    Behavior: 3.44 (5)                OTA : 3.48

 Military Decorations: None

 Unit/Campaign/Service Awards: BER, MUC, SSDR, NDSM

 Days of Unauthorized Absence: 31

 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 :

870116:  Applicant briefed on Navy's policy on drug and alcohol abuse.

870622:  Applicant signed the drug awareness statement.

 870814:  NJP for violation of UCMJ, Article 128 (3 specs): Assault, violation of UCMJ, Article 134 (3 specs): Drunk and disorderly, communicating a threat.
         Award: Forfeiture of $200.00 per month for 2 months, restriction and extra duty for 15 days, reduction to SA. No indication of appeal in the record.
871009:  NJP for violation of UCMJ, Article 86 (2 specs): Unauthorized absence from 0600-0930, 8Sep87, (2) Unauthorized absence 0530 - 0730, 12Sep87, violation of UCMJ, Article 90: Willfully disobeying superior commissioned officer, violation of UCMJ, Article 92: Failure to obey order or regulation.
         Award: Restriction and extra duty for 10 days. No indication of appeal in the record.
910112:  Applicant extended enlistment for 24 months.

 910404:  NJP for violation of UCMJ, Article 86 (3 specs): (1) Absent from organization on 0700 - 0735, 14Mar91, (2) Absent from organization on 0505 - 0620, 26Feb91, (3) Absent from organization on 0505 - 0620, 27Feb91.
         Award: Forfeiture of $150 per month for 1 month, extra duty for 5 days, reduction to RMSA. Reduction suspended for 6 months. No indication of appeal in the record.
910404:  Retention Warning: Advised of deficiency (Unauthorized absence for 35 minutes, 1 hour and 15 minutes, 1 hour and 15 minutes), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910521:  Retention Warning: Advised of deficiency (Alcohol abuse, incident one), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910521:  Retention Warning: Advised of deficiency (Poor impulse control and destruction of government property), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910628:  Vacate reduction to RMSA awarded at CO's NJP dated 4Apr91 due to continued misconduct.

910628:  NJP for violation of UCMJ, Article 134: Incapacitated to assume her duties as a result of previous overindulgence in intoxicating liquor on 23Jun91, violation of UCMJ. Article 107 (2 specs): (1) False official statement on 23Jun91, (2) False official statement on 2345, 23Jun91, violation of UCMJ, Article 92 (4 specs): (1) Fail to obey a lawful order on 8Jun91, (2) Fail to obey a lawful order on 2345, 23Jun91, (3) Fail to obey a lawful order on 2350, 24Jun91, (4) Derelict in the performance of duties on 23Jun91.
         Award: Forfeiture of $377 per month for 2 months, restriction and extra duty for 45 days, reduction to RMSR. No indication of appeal in the record.
910806:  Applicant declared a deserter.

 910808:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 1845, 7Jul91 to 1630, 7Aug91 (31 days/surrendered), violation of UCMJ, Article 134: Break restriction on 7Jul91.
         Award: Forfeiture of $376 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
910826:  Applicant directed to attend three AA meetings per week.

 910829:  Applicant found to be physically/psychologically alcohol dependent and recommended for Level III treatment.

910830:  Applicant declined VA treatment.
910906:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by my five NJP's and misconduct due to the commission of a serious offense as evidenced by my unauthorized absence in excess of thirty days (31 days) and my violation of UCMJ Article 92: Failed to obey (4 specs); UCMJ Article 107: Making a false official statement (2 specs) and UCMJ Article 134: Breaking restriction.
910906:          Applicant advised of her rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
910910:  Applicant elected not to have an administrative discharge board.

910911:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct and misconduct due to the commission of a serious offense. Commanding officer’s comments: RMSR (applicant) graduated from RM "A" School and was processed for misconduct due to pattern of misconduct due to commission of a serious offense, and alcohol abuse rehabilitation failure (enclosure (3) and (9) germane). She is not recommended for future service in any military organization. I recommend RMSR (applicant) be discharged from the naval service with an Other Than Honorable Discharge....

910913:  Applicant's restriction and extra duty awarded at CO's NJP on 8Aug91, is remitted to facilitate separation from the naval service.

910927:  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 911010 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 Board found that the applicant’s unauthorized absence in excess of thirty days (31 days) in August of 1991 and violation of Article 92 in June of 1991 constituted the commission of serious offenses. No other narrative reason more clearly describes the circumstances surrounding the applicant’s processing for administrative separation. The Board found no detailed statement from the applicant concerning her allegations of sexual harassment, nor any evidence in the official record that the punishments she received while on active duty were improper or inequitable. Relief denied.

Issue 2. The Board has no authority to upgrade a discharge for the sole purpose of enhancing post-service opportunities as requested in the issue. The applicant’s discharge characterization accurately reflects her service to her country. The Board’s charter limits its review to a determination on the propriety and equity of the discharge. In the applicant’s case the Board could discern no impropriety or inequity and therefore considered the applicant’s discharge was proper and equitable. Relief denied.

Issue 3. A characterization of service of 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 five occasions and adverse counseling entries on other occasions. The applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for an honorable characterization of service. An upgrade would be inappropriate.

 The NDRB, under its responsibility to examine the propriety and equity of an applicant's discharge, will change the reason for discharge if such a change is warranted. The applicant had four separate NJP convictions for misconduct to include assault, drunk and disorderly, unauthorized absence (31 days UA), willfully disobeying a superior commissioned officer, failure to obey orders and regulations, incapacitated to assume her duties, false official statement and breaking restriction. The applicant's blatant violations of the UCMJ constitute a serious offense. The applicant's DD Form 214, Block 26, Separation Code, indicates he was separated for misconduct based on the commission of a serious offense. No other Separation Code, or Narrative Reason for Separation could more clearly describe why the applicant was discharged.

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 her not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to her discharge. She is reminded that she remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of her 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), effective 15 Aug 91 until
04 Mar 93, 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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