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NAVY | DRB | 2002_Navy | ND02-00135
Original file (ND02-00135.rtf) Auto-classification: Denied


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

ex-FR, USN
Docket No. ND02-00135

Applicant’s Request
This application for discharge review, received 011017, requested the characterization of service awarded to the Applicant upon her discharge be upgraded 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 020715. 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: GENERAL (UNDER HONORABLE CONDITIONS), reason: MISCELLANEOUS/GENERAL REASON, authority: NAVMILPERSMAN, Article 3620200.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 I am writing this letter in hopes of upgrading my service discharge from a General (under honorable conditions) to an Honorable. I feel circumstances should be taken into account that weren't at the time of the hearing; my only witness had unfortunately passed away before his testimony could be heard. The courts then took the written testimony of my husband at that time, and used it against me. I feel this was unfair, because a husband can not testify against his wife and his actions were done in malice, he had only hate and vengeance in his heart because I chose the military over him, entering into the armed forces was something he never wanted me to do. I ask for this upgrade so I can continue my education and be productive in life. " The pain of discipline weigh ounces the pain of regret weigh pounds." I no longer wish to carry the pounds I would like to continue on, regret free, knowing I pursued all aspirations and ultimately, achieved peace and happiness. With the review boards permission of an up grade, I will achieve educational success making my possibilities unlimited.

Sincerely, (Signed by Applicant)

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Transcript from Peralta Community College

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN               None
         Inactive: USNR (DEP)     891219 - 891225  COG

 Period of Service Under Review :
Date of Enlistment: 891226               Date of Discharge: 941230

 Length of Service (years, months, days):

         Active: 04 10 27
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 38

 Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.20 (4)    Behavior: 3.40 (4)                OTA: 3.40

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC, BATTLE"E"RIBBON, NUC, NDSM, SASM, SSDR

Days of Unauthorized Absence: 3

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCELLANEOUS/GENERAL REASONS, authority: NAVMILPERSMAN, Article 3620200.


 Chronological Listing of Significant Service Events :

910523:  NJP for violation of the UCMJ, Article 91: Disrespect to a Superior Petty Officer on 910504.
         Award: Forfeiture of $200.00 pay per month for 1 month, reduction to E-1 (suspended for 6 months). No indication of appeal in the record.

910525:  Retention Warning from [USS SAMUEL GOMPERS (AD-37)]: Advised of deficiency (Violation of the UCMJ, Article 92, did, on 910504, behave herself with disrespect toward a superior petty officer), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

921023:  NJP for violation of the UCMJ, Article 86: Unauthorized absence from 1300, 920904 to 1030, 920907(3days/S); violation of the UCMJ, Article 111: Operate a passenger car while drunk at NAS Alameda on 920912.
         Award: Forfeiture of $482.00 pay per month for 1 month, restriction to limits of USS SAMUEL GOMPERS (AD-37) for 30 days, and extra duty for 30 days, reduction to E-2 (suspended for 6 months). No indication of appeal in the record.

930130:  On unauthorized absence from 0715, 930130. Voluntarily returned on board at 1010, 930130. On authorized absence for a period of about 2 hours 55 minutes. Member was counseled.

930901:  Special Court Martial [trial dates 25 & 31 Aug & 1 Sep 1993]
         Charge I: violation of the UCMJ, Article 92, (2 Specifications) .
         Specification 1 : On or about 920129, having knowledge of her duties, was derelict in that she willfully failed to submit an updated correct dependency application/record emergency data form; Specification 2 : On or about 920527, willfully failed to submit her housing assignment/termination feeder sheet to the personnel office USS SAMUEL GOMPERS. Charge II: violation of the UCMJ, Article 107: (4 Specifications) , Specification 1 : On or about 920129, with intent to deceive, sign an official document dependency application/record emergency data form which was false; Specification 2 : On or about 921229, with intent to deceive, make a false official statement; Specification 3: On or about 930319, with intent to deceive, make a false official statement Specification 4 : On or about 930522 sign a false official document family housing application. Charge III: violation of the UCMJ, Article 121: From on or about 920522 to on or about 921031, steal $3,319.56, the property of the United States Government.
         Findings: to Charge I and specifications 1 and 2 thereunder, guilty. To Charge II and specifications 1 thru 4 thereunder, guilty. To Charge III and specification thereunder, guilty.
         Sentence: Confinement for 45 days, reduction to E-1, Bad Conduct discharge.
         CA 931026: Sentence approved and ordered executed, except for bad conduct discharge.
        
930922:  Released from confinement and restored to full duty. Retained onboard for further disposition and appellate leave processing.

940702:  Affidavit of D_ J. M_ (Convening Authority), recommending BCD be set aside and commuted to a general discharge.

940921:  NMCCMR: We have examined the record of trial, the assignment of error, and the Government's reply thereto. Like the appellant, we find the convening authority's action concerning the bad conduct discharge to be ambiguous. However, an affidavit from the convening authority indicates her intent to disapprove a bad conduct discharge. We will assure that the convening authority's intent is carried out. Accordingly, the findings are affirmed. However, only so much of the sentence is affirmed as provides for confinement for 45 days and reduction to pay grade E-1.
941230:  SSPCMO: The adjudged bad conduct discharge having been set aside and Article 71c, the UCMJ, having been complied with, the general discharge will be executed.           

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 941230 with a General (Under Honorable Conditions), by reason of a review process as a result of a court martial conviction in which the punitive discharge was set aside (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).

The Applicant contends there were issues not considered at the time of her discharge because her only witness had passed away. She also contends the court unfairly considered the testimony of her husband. The characterization of the Applicant's discharge was the result of a court-martial conviction. The record supports the fact that the Applicant received a fair and impartial trial by court-martial. The characterization of her discharge was proper and equitable. No relief is warranted.

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. E vidence 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 clemency, based on post-service conduct. The Applicant did not provide any of these documents. 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.


Pertinent Regulation/Law (at time of discharge)

 A. The Naval Military Personnel Manual, (NAVPERS 15560C, Change 9, effective 22 Jul 94 until 23 Jun 96), Article 3620200, SEPARATION OF ENLISTED PERSONNEL BY REASON OF CONVENIENCE OF THE GOVERNMENT.

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 Rm309
                  Washington Navy Yard DC 20374-5023      

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