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NAVY | DRB | 2002_Navy | ND02-00716
Original file (ND02-00716.rtf) Auto-classification: Denied


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

ex-YNSA, USNR
Docket No. ND02-00716

Applicant’s Request
The application for discharge review, received 020425, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a documentary record discharge review. The Applicant listed Disabled American Veterans as the 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, 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)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.       My discharge was unjust because it was based on two incidents after 3 years of good conduct. I was not treated fairly in either case. First time I was sent to captain's mast because when I checked out for leave, I took my entire leave papers with me. I was suppose to check out on leave on a Friday afternoon, after close of business. When it was time for me to check out on leave, the command personnel were all at PT and then gone for the weekend. Due to being on limited duty, I stayed in the admin office to field day. I was unable to get anyone to sign me out for leave because I had to be signed out by someone in my department and superior to me. I had to go to PSD to turn in a few service records. I proceeded to PSD. I went to the Limited Duty section of PSD and asked if I could have them sign me out for leave. I was told yes they could sign me out on leave because they have the final authority regarding my leave request because I was on limited duty status. I was signed for leave by PC2 S_ in Limited Duty section of PSD. Prior to returning from leave, I received a phone call at home from SN L_ S_. She questioned me on the whereabouts of some legal documents. I received a second call regarding my leave papers. I told her that I had my entire leave papers because I had to have Limited Duty at PSD sign me out for leave because there was no one at the command that had the authority to do so. SN S_ then informed our department head, YNC C_ Q_ what I had told her. I asked her to ask YNC Q_ if he needed me to come in to bring my leave papers. He told her that there was no need because my leave could not be completely processed until I returned from leave. When I returned from leave, I was sent to XOI (executive officer's instruction) and then to captain's mast. I was reduced in rank to a YNSN and 60 days restriction-suspended.

The second time I was sent to captain's mast was because I was considered UA while on duty. I advised the section leader that I attended physical therapy three times a week. I was dropped off, by a friend, for my physical therapy session on time. After I completed my physical therapy, I called the command to request transportation. I was told by the quarter-deck watch that the duty driver was at lunch and that it would be awhile before I could be picked up. I told the person on watch that I was the person to relieve him for watch so please inform the section leader where I was just in case I would be late for watch. I asked someone that I knew for a ride back to my command. I arrived 30 minutes prior to the time of my watch and I took over the watch 15 minutes prior to my watch time as I was suppose to. The next day, I was questioned by the CDO about were I was the time prior to my watch. I told him exactly what happened. The CDO told me that he was instructed to write me up for being UA. I was then sent to XOI and captain's mast again. This time I received another reduction in rate to YNSA and 45 days restriction and the 60 days restriction from the previous captain's mast.

I took my punishment and made arrangements for my son to stay with family. From then on YNC Q_ tried to find a reason to have me involuntary separated from the Navy. I did not want to get out of the Navy. I loved being a yeoman. I loved being in the Navy. YNC Q_ succeeded and I was discharged for misconduct on Jan 30, 1998.

 2. 1 am unable to use my G.I. Bill due to the type of separation, General under
Honorable Conditions. I want to complete my goal of obtaining an Associates degree
in Legal Assisting and a Bachelors degree in Business Management.
The G. I. Bill will assist me on completing my goals.

 3.       1 accomplished passing the E-4 exam for Yeoman in September 1996.
4.       1 am a single working parent of two children. I would like to enhance my education to improve myself financially as well as spiritually.

5. (DAV Issue) After a review of the Former Service Member (FSM) DD Form 293 Application for the Naval Discharge Review Board of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to support the contentions as set forth by the Applicant, in her request that she be given the opportunity to upgrade her Discharge from a General (Under Honor Conditions) to a Navy Honorable Discharge.
The (FSM) entered the US Naval Services on August 02, 1994 to October 15, 1998 a period of over (3) years and received (2) non-judicial Punishment, during this entire tem of service. The (r-SM) also received several recommendations to include the Good Conduct Award on October 9, 1997
The (FSM) desires to have her Discharge up-graded due to the fact that she feels she was unfairly treated by her Senior Chief Q_, who took every opportunity to punish her for offenses or violations that had no merit or evidence to convict her for wrong during. Every offense that she was cited for was a questionable issue. Example Article 92/ Failure to obey orders or regulations. The (FSM) in checking out on approved scheduled leave had a senior Enlisted duty officer sign her leave papers, since it was after normal business hours and no other Unit member was present to sign. The (FSM) requested guidance in seeking to have her leave papers signed and was directed serviceman who she thought has the authority to act in a proper manner, but to her avail she was later charged with a UCMJ Article 92/ failure to obey orders or regulations .

 The (FSM) also stated that to her knowledge no action were taken against the senior enlisted sailor, who signed her leave papers. The Second Article 86 was for approximately the same type of situation a mis-communication issue that should have been settled without issuing a NJP.

The (FSM) and I contend that the offenses were so questionable and the issuance of a General (-Under Honorable Conditions) Discharge is a extreme case, since the (FSM) records seem to not indicate, or support the Narrative of her Discharge and no other evidence is noted or reflected in her term of service.

The (FSM) now respectfully requests an equitable standard be applied as well as equity in treatment in seeking the board's approval to afford her the opportunity to receive and a up-grade of General (Under Honorable Conditions Discharge to a Navy Honorable Discharge. The (FSM) sincerely hopes that by respectfully requesting and being granted an Up-Grade of her Discharge and the dismissal of her (2) UCMJ Article's of punishment from the US Navy. The (FSM) feels her military accomplishments are a matter of Supreme Honor and Respect she will cherish throughout her lifetime. The (FSM) also states she, had always tried to achieve. Honor and Respect during her entire term of enlistment of military duty in the Naval Services. We respectfully request that the (FSM) be given complete and duly consideration by the board. We also respectfully request that the board consider each reasonable explanation submitted by the (FSM) who now wishes to seek to correct the injustices that occurred to her in fulfilling her military duty in the United States Naval
Services.

We ask for the Boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the Applicant.


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Reference Letter from N_ G_
Employment Reference Letter
Letter of Recommendation from T_ C_
Copy of DD Form 214.

PART II - SUMMARY OF SERVICE

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

 Period of Service Under Review :
Date of Enlistment: 940315               Date of Discharge: 980130

 Length of Service (years, months, days):

         Active: 03 05 09
         Inactive: 00 04 18

 Age at Entry: 18                          Years Contracted: 8

Education Level: 12                        AFQT: 59

 Highest Rate: YN3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.71 (7)    Behavior: 2.42 (7)                OTA: 2 .67

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, GCA

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).


 Chronological Listing of Significant Service Events :

940802:  Commenced 36 months of active duty under the Seaman Apprenticeship Training program.

971008:  NJP for violation of UCMJ, Article 92: (3 Specifications) , failure to obey order or regulation; Specification 1 : Did at Beachmaster Unit TWO, NAB, Little Creek, Virginia, on or about 1530, 970814, was derelict in the performance of those duties in that she negligently failed to sign out on leave upon departing as it was her duty to do so. Specification 2 : Having knowledge of a lawful order issued by Commanding Officer, Beachmaster Unit TWO, to wit: paragraph 10, section B, the Beachmaster Unit Instruction 1050.1N (Leave, Liberty, and Special Request) dated 950421, and order which it was her duty to obey, did at Beachmaster Unit TWO, on or about 970814, fail to obey the same by wrongfully taking part 2 and 3 of her leave Request/Authorization (NAVCOMPT 3065); Specification 3 : Having knowledge of a lawful order issued by Commanding Officer, Beachmaster Unit TWO, to wit: paragraph 10, section C, the Beachmaster Unit Instruction 1050.1N (Leave, Liberty, and Special Request) dated 950421, and order which it was her duty to obey, did at Beachmaster Unit TWO, on or about 970822, wrongfully had PN3 S_ at PSD Little Creek sign her out on leave on her day of return, violation of UCMJ Article 86: Did on or about 1600, 970930, without authority, absent herself from her place of duty at which was required to be, to wit: Beachmaster Unit TWO, located at NAB, Little Creek, Virginia, and did remain so absent until or about 2200, 970930.
         Award: Restriction to BMU-2 for 45 days suspended, reduction to E-3 suspended for 6 months restriction only. No indication of appeal in the record.

971125:  NJP for violation of UCMJ, Article 86: Did on or about 0830, 971114, without authority, absent herself from her place of duty at which was required to be, to wit: Beachmaster Unit TWO, located at NAB, Little Creek, Virginia, and did remain so absent until or about 1445, 971114.
         Award: Restriction to BMU-2 for 60 days, reduction to E-2. No indication of appeal in the record.

971202:  Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.
971204:  Applicant advised of her rights and having elected to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to submit statements on own behalf either verbally or in writing and the right to obtain copies of the documents used to support the basis for the separation, the right to a minimum of 2 workings days to respond to the Notice of Notification Procedures Action. Election of this right requires that I date and sign this document (2 working days) later than the receipt of the Letter of Notification. If my signature is dated earlier than the above stated time, this right is considered to be waived, the right to General Court Martial Convening Authority review if I have under six years total active and/or reserve military service.
971211:  Commanding Officer recommended discharge general (under 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 980130 with a general (under honorable conditions) characterization of service 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 Board disagrees with the Applicant's first issue. The Applicant asserts her overall service record warrants an upgrade to her discharge. When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. A general characterization of service 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 her disobeying lawful orders and a period of unauthorized absence. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy and falls short of that required for an upgrade of his characterization of service. Relief is not warranted.

The Applicant desires an upgrade to her discharge so she can receive benefits from the Veterans Administration (VA) including the GI Bill. The VA determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

The basis for the Applicant's discharge was her commission of a serious offense. The Board presumes regularity in the conduct of government affairs. The Applicant failed to present evidence to overcome this presumption. 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. Failing to obey a lawful order is a "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 15560C), Change 18, effective
12 Dec 97 until 29 March 2000, Article 1910-142 [formerly 3630605]. SEPARATION 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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