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NAVY | DRB | 2003_Navy | ND03-00261
Original file (ND03-00261.rtf) Auto-classification: Denied


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

ex-QMSA, USN
Docket No. ND03-00261

Applicant’s Request
The application for discharge review, received 20021125, 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. Subsequent to the application, the Applicant obtained representation by the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031017. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. 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 stated

No issues were submitted by the Applicant.

Counsel/representative for the Applicant submitted the following:

 1. “ Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application. His records were reviewed on 4/9/03 and the following comments are hereby submitted.

We concur with the Applicant contention that his discharge be upgraded.

We refer this case to the Board for their careful and compassionate consideration and request the Applicant's discharge be reviewed for upgrading his discharge to General.”
Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Handwritten letter from the Applicant (7 pages)
Certificate dated June 9, 1989
Official school transcript from Universal Technical Institute, dated June 24, 1999
Citation
Enlisted Performance Evaluation Report for period January 17, 1992 to October 29, 1992

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19890609 – 19890926      ELS
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19890929             Date of Discharge: 19930107

 Length of Service (years, months, days):

         Active: 03 03 09
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 11 GED           AFQT: 28

 Highest Rate: QMSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.20 (3)    Behavior: 3.10 (3)                OTA : 3.27

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, AFEM

 Days of Unauthorized Absence: None

 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 :

900730:  NJP for violation of UCMJ, Article 91 (3 specs): Disobeying a lawful order and disrespect towards a superior petty officer on 900625.
         Award: Forfeiture of $362 per month for 1 month, restriction and extra duty for 15 days. Forfeiture suspended for 6 months. No indication of appeal in the record.
900817:  Vacate suspended forfeiture of $362.00 for 1 month suspended at CO’s NJP dated 900730 due to continued misconduct.
900817:  NJP for violation of UCMJ, Article 91: Disobeying a lawful order from a superior petty officer on 900815.
         Award: Reduction to SA. Reduction suspended for 6 months. No indication of appeal in the record.
920312:  NJP for violation of UCMJ, Article 134 (2 specs): (1) Drunk and disorderly on 920308, (2) Wrongfully commit an indecent act by urinating in public on 920308.
         Award: Forfeiture of $150 per month for 1 month, restriction and extra duty for 15 days. No indication of appeal in the record.
920615:  Retention Warning: Advised of deficiency (NJP performances at your former command. This type of behavior cannot be tolerated in the Armed Forces.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

921015:  NJP for violation of UCMJ, Article 92 (2 specs): Disobeying a lawful order.
         Award: Forfeiture of $200 per month for 2 months, reduction to QMSA. No indication of appeal in the record.
921020:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
921020:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation and submitted a statement. Applicant verbal waived right to submitted statement.
921022:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense.

930106:  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 19930107 under other than honorable conditions for misconduct due to commission of a serious offense (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’s counsel requests the Board’s careful and compassionate consideration in reviewing the Applicant’s discharge for upgrade to General.

The Board carefully and compassionately reviewed all documentary evidence related to this case and determined that the Applicant’s discharge characterization and reason accurately reflect his service to his country. The post-service documentation provided was insufficient to warrant recharacterization of the Applicant’s discharge. The discharge was proper and equitable. Relief denied.

 The applicant is reminded that he is 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. Representation at personal appearance hearing is 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 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

 B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 92 (failure to obey a lawful order) if adjudged at a Special or General Court-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 " 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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