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NAVY | DRB | 2003_Navy | ND03-00441
Original file (ND03-00441.rtf) Auto-classification: Denied


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

ex-SR, USNR
Docket No. ND03-00441

Applicant’s Request
The application for discharge review was received on 20030124. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance discharge review before a traveling panel closest to [left blank]. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant 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 20031229. 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, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “My discharge was inequitable because it was based on one isolated incident in 8 months of service with no other adverse action. I was ordered to report to Treasure Island Naval Station, out Processing Center, to wait for my ship. A first class petty officer that I worked with, had bought me alcohol, and I got in trouble. I did not tell on him for that. He thought he would repay me by buying me more alcohol and sexually assaulting me. The torment I endured after that was the worst of all. I turned him in, and he humiliation I suffered because the Navy made me continue to work with him. I was ordered to see a psychiatrist where I had enough and told him I wanted out. Because of the trouble I got into I received an other than honorable discharge. I believe this is unfair, I don’t believe the Navy should have placed a new recruit on Treasure Island with the worst of the Navy. I believe the Navy at least owes me an honorable discharge for what I had to endure at Treasure Island. I was looking forward to a carreer in the Navy and Treasure Island took that from me. This is my first course of action to clear my name of something I don’t believe I was at fault for. If that never happened, being assaulted, I would have accepted my punishment and enjoyed a carreer in the Navy, but instead I was humiliated, and discouraged to be in a Navy with petty officers like that.”
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: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 940802               Date of Discharge: 950407

 Length of Service (years, months, days):

         Active: 00 08 06
         Inactive: 00 00 03

 Age at Entry: 20                          Years Contracted: 8

 Education Level: 12                        AFQT: 62

 Highest Rate: SR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA                           Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

940802:  Applicant ordered to active duty.

 950201   Mental Health Clinic: Impression: Axis I: Alcohol Dependence. Axis II: Personality disorder with sociopathic and aggressive features.

950201   Applicant diagnosed with personality disorder. The psychiatrist recommended separation based on a personality disorder of such severity as to render the Applicant incapable of serving adequately in the naval service. Applicant was considered self-destructive and a continuing risk of harm to self or others.

950221:  NJP for violation of UCMJ, Article 92: Failure to obey lawful regulation, violation of UCMJ Article 108: Destruction of government property, violation of UCMJ Article 134: Disorderly conduct, drunkenness.
         Award: Restriction and extra duty for 30 days. No indication of appeal in the record.
950223:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and convenience of the government on the basis of a personality disorder.
950228:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights.
950308:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and convenience of the government on the basis of a personality disorder.

950331:  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 19950407 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).

 Issue 1: The Applicant states his discharge was based on one isolated incident in “8 months of service.” In the civilian world this type of offense may be treated with leniency because it was a first time incident on an otherwise clear record. However, to maintain proper order and discipline the military does not view such offenses as minor. The Applicant’s service record is marred by award of non-judicial punishment (NJP) for offenses including destruction of government property and drunk and disorderly conduct. The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls short of that required for an honorable characterization of service. An upgrade to honorable would be inappropriate. Relief denied.

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, a positive employment record, an alcohol-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. 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 9, effective
22 Jul 94 until 02 Oct 96, 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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