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NAVY | DRB | 2002_Navy | ND02-00712
Original file (ND02-00712.rtf) Auto-classification: Denied


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

ex-FR, USN
Docket No. ND02-00712

Applicant’s Request
The application for discharge review, received 020429, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions. 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 030116. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the 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, as submitted

1. I believe discharge was given for administrative reasons. I opted for early discharge due to a request from senior "A" school administration but not for a lack of discipline, but due to government cutbacks. I was told then that changing type of discharge would be possible later. I had a few disciplinary issues, but they were acts of self defense. One assault on me occurred while I was standing fire watch duty. I understand these problems could have been avoided, but I was young, and the events following the aforementioned matter resulted in Capt. Mast for me, the victim, and left kind of the wrong impression on me for my future with the Navy. Please consider my request open-minded because there were more circumstances than are listed on my service records.

 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):
         Inactive: USNR (DEP)     890210 - 890430  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 890501               Date of Discharge: 900314

 Length of Service (years, months, days):

         Active: 00 10 14
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 9 GED                     AFQT: 59/57

 Highest Rate: FR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.80 (1)    Behavior: 2.80 (1)                OTA : NOB

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 4

 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 :

890530:  Drug and Alcohol Abuse Report: Marijuana abuse, less than monthly, ashore off duty. Service directed urinalysis on 890501. Commanding Officer recommended retention, Level I treatment and written warning. Comments: SNM tested positive for THC in accession pipeline urinalysis.

891023:  NJP for violation of UCMJ, Article 86 (4 specs):
 Specifications 1 - 3: Failed to go to appointed place of duty, to wit: Mandatory night study between 890824 and 890829.
Specification 4: Unauthorized absence from 0500, 891003 to 0500, 891004 (1 day).
Violation of UCMJ, Article 117: Wrongfully use provoking words on 890911.
Violation of UCMJ, Article 128: Assault on another person on 890911.
         Award: Forfeiture of $150 per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record. [Partial information extracted from Commanding Officer's letter dated 900222.]

891023:  Retention Warning: Advised of deficiency (Poor military performance, without authority, fail to go at the time prescribed to your appointed place of duty, to wit: mandatory night study, and by assaulting another service member, by striking at him with his fist.) Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
891130:  NJP for violation of UCMJ, Article 86 (5 specs):
 Specification 1: Failed to go to appointed place of duty on 891109.
Specification 2: Failed to go to appointed place of duty on 891109.
Specification 3: Failed to go to appointed place of duty on 891105.
Specification 4: Failed to go to appointed place of duty on 891105.
Specification 5: Unauthorized absence 2200, 891109 to 0500, 891113 (3 days/surrendered).
Violation of UCMJ Article 92 (2 specs):
Specification 1: Dereliction of duty on 891119.
Specification 2: Dereliction of duty on 891119.
         Award: Forfeiture of $150 per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.
900206:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
900206:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
900222:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

900314:  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 900314 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).

The Applicant argues that his discharge was the result of "administrative reasons." The Board found evidence of two nonjudicial punishments imposed on 891023 and 891130. The nonjudicial punishments were imposed for a number of "serious offenses." The term "serious offense" should not be confused with what is considered serious in the civilian world. The Uniform Code of Military Justice (UCMJ) categorizes a wide range of offenses: disrespectful language, failure to obey a lawful order or written regulation, drunken driving, forgery, fraud, missing ship's movement, unauthorized absence in excess of 30 days, making false official statements, and so forth, right up to the most "serious" crimes of spying, aiding the enemy in time of war, mutiny, rape and murder. Although all of these offenses come under the broad UCMJ category of "serious offense", some are clearly more heinous than others. A person in the military must abide by the standards set forth in the UCMJ, regardless of what guidelines his civilian counterparts might utilize. Assaults, use of provoking words, and failure to obey lawful orders are "serious offenses" under the UCMJ. The commission of any single "serious offense" supports a discharge under other than honorable conditions. The Applicant's discharge was proper and equitable. Relief denied.

The following is provided for the benefit of the Applicant. Normally, to permit relief, the discharge or characterization of the Applicant's service had to be improper or inequitable. 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. Relief denied.

 The Applicant is reminded that the period of eligibility for a personal appearance hearing is 15 years from the date of discharge. The application package must be submitted to the NDRB prior to the expiration of the 15 year period. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Representation at a personal appearance hearing is recommended but not required.



Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A), Change 8, effective
21 Aug 89 until 14 Aug 91, 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 " 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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