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NAVY | DRB | 2001_Navy | ND01-01047
Original file (ND01-01047.rtf) Auto-classification: Denied


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

ex-YNSN, USN
Docket No. ND01-01047

Applicant’s Request
The application for discharge review, received 010809, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a personal appearance hearing before a traveling panel closest to Indianapolis, Indiana. 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) 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 of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Separation in lieu of trial by court martial, authority: NAVMILPERSMAN, Article 3630650.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. My discharge was inequitable because it was based on one isolated incident in my 4 years of service with no other adverse action.

2. Just months before I was discharged, I had plans on re-enlisting, a message was sent to Washington. I was approved for re-enlistment (see document 10)

3. When I was discharged from the Navy I was not reduced in rank. Which normally happens when you are being discharged due to misconduct or on an other than honorable.

4. My Commanding Officer and Supervisor knew that it was not intentionally done that it was an accident. Nothing had been open or tampered with, but because it was U.S. Mail and due to the severity of the offense being that it was U.S. Mail, the Navy had to take action.

 5. One Weekend a Month (1) and Two Weeks (2) out of the year, I am on an Active duty status.

6. I can be activated to Active Duty Status for up to 2 years or more at any given time.

7. I have been placed in a 5-1/2year enlistment with the National Guard on Active duty status.

8. I work as a Federal employee (Technician) who wears a military uniform everyday and perform military functions and work loads on a 5-day workweek.

9. The same job that I did for the United States Navy as a Yeoman is the same exact job that I do for the Indiana Army National Guard as a Secretary/Administrative Specialist on a full-time and part-time basis. (see supporting documents 11 - 1 2)

10. The military no matter what branch is still the military, I was waiver able to join the Indiana National Guard, I feel as though I should be re-accepted to join any branch of the military. (See supporting documents 2-3).

11. I am going to attend PLDC in January 25, 2002 thru February 9, 2002, to become a Non Commissioned Officer (NCO) E-5. Meaning I am going to learn more about leadership and responsibility. (see supporting document 14)


Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Copy of request for waiver to enter Indiana Army National Guard dated November 14, 1996
Copy of approval of waiver dated December 24, 1996
Letter from applicant requesting upgrade of discharge dated August 1, 2001
Letter from a civilian employer (doctor) dated July 30, 2001
Letter of recommendation dated July 31, 2001
Letter in behalf of applicant dated August 1, 2001
Letter of recommendation (Airforce Colonel) dated July 23, 2001
Message approving reenlistment, months prior to discharge dated March 28, 1991
Copy of last enlisted performance evaluation report for period August 1, 1990 to January 31, 1991
Copy o MDI Form 430, performance standards dated June 14, 2001
Copy of two job descriptions, one for full-time federal technician and the other for part-time weekend drill)
Letter of recommendation from a Colonel dated August 2, 2001
Copy of class roster for Primary Leadership Development
Closing remarks from applicant, undated
Letter from applicant, undated
Notification of Personnel Action dated December 2, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: None

 Period of Service Under Review :
Date of Enlistment: 871027               Date of Discharge: 911129

 Length of Service (years, months, days):

         Active: 04 01 03
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

 Education Level: 12                        AFQT: 39

 Highest Rate: YNSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.20 (6)    Behavior: 3.43 (6)                OTA: 3.40

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, MUC

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/separation in lieu of trial by court martial, authority: NAVMILPERSMAN, Article 3630650.

 Chronological Listing of Significant Service Events :

910815:  Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 134 (2 specs): (1) Wrongfully secret certain mail matter, to wit: one hundred eighty-eight letters, postal cards, newspapers, magazines and flyers, (2) Wrongfully steal certain mail matter between the end of July 1991 to 12 August 1991, to wit: one hundred eighty-eight letters, postal cards, newspapers, magazines and flyers, Article 121: Steal a United States mail bag in July 1991, a value of $6.75, the property of the United States Government.

910815:  Applicant relieved of mail duty pending NIS investigation.

911107:  Medical Examination: Applicant evaluated by medical officer and found to be of normal mental status – no documented mental health/psychiatric illness in the past. Psychiatric evaluation not required. Applicant understands the charges preferred against her and is capable in assisting in the preparation of her defense. Applicant is fit for duty and should be held responsible for her actions.

911021:  A pplicant requested an administrative discharge under other than honorable conditions in lieu of a trail by court-martial. She consulted with counsel and was fully advised of the implications of her request. The applicant stated she understood the elements of the offense(s) with which she was charged, and admitted she was guilty of all the charges preferred against her. Specifically, she admitted to violating UCMJ, Article 92: Derelict in the performance of duty between January 1990 and February 1990, to wit: duty to forward mail to form VX5 personnel, Article 134 (2 specs): (1) Wrongfully secret one hundred and eight items of mail between February 1990 to July 1991, (2) wrongfully steal one hundred and eight items of mail, Article 121: Steal a United States mail bag in August 1991, a value of $6.75. The applicant stated she was completely satisfied with the counsel she had received. The applicant understood that if discharged under other than honorable conditions, it might deprive her of virtually all veterans' benefits based upon her current enlistment, and that she/he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.

911114:  The commanding officer, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed applicant’s discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 911129 under other than honorable conditions in lieu of a trial by court-martial (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 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. The applicant is responsible for her actions and must accept the consequences of her misdeeds. The Board will not grant relief on the basis of this issue.

 The applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited relief. The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded. Relief denied.
Issue 2. The Board found the applicant’s approval for reenlistment months prior to the investigation that uncovered her misconduct has no bearing on her subsequent characterization of service and discharge proceedings. Relief denied.

Issue 3. There was no inequity or impropriety in the fact that the applicant was not reduced in rank as a result of her request for separation in lieu of court martial. Relief denied.

Issue 4. Whether the misconduct was willful or not, special court martial charges were preferred against the applicant on 910815. The applicant requested separation in lieu of court martial, and in doing so admitted guilt to the charges against her. Relief denied.

Issues 5-9, 11. The Board determined these issues are non-decisional and require no further comment. The applicant’s discharge characterization accurately reflects her service to her country. The discharge was proper and equitable. Relief denied.

Issue 10. The NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Relief is therefore 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 15560C), effective 15 Aug 91 until
04 Mar 93, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR SEPARATION IN LIEU OF TRIAL BY COURTMARTIAL.

B. A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article [e.g., 86, unauthorized absence for a period more than 30 days] upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-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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