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NAVY | DRB | 2004_Navy | ND04-00005
Original file (ND04-00005.rtf) Auto-classification: Denied


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


ex-OSSR, USN
Docket No. ND04-00005

Applicant’s Request
The application for discharge review was received on 20030926. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests 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 Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040628. 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 HONORABLE CONDITIONS (GENERAL)/Misconduct - minor disciplinary infractions, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as stated
Applicant’s issues, as stated on the application:

 1. “Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge.”
 2. “Under Current Standard’s I would not receive the type of discharge I did.”
 3. “My record of NJP’s indicates only isolated or minor offenses.”
 4. “My record of UA indicates only minor or isolated offenses.”
5. “My ability to serve was impaired by my youth that immaturity to.”
 6. “I had injured my knee aboard the Forrestal and was assigned to shore duty at Facs,Pac, Jax. I had an operation on my knee at the beginning of March and was given some leave so I flew home to Los Angeles and there I reinjured my knee and was admitted to Long Beach Naval Hospital. There at the hospital I was given some more leave and told by the surgeon a captain that he was having my orders changed and that I would remain there for 6 months on limited duty. Right before this happened in the month of February I was called a Nigger by my white roommate. My roommate and I and his buddy got into an altercation. At the end of February or beginning of March before I had the operation I asked my supervisor B__ could I move up in rank to an E-3 he told me to ask his supervisor, I was passed over unjustly. I am requesting mercy”.

Additional issues submitted by Applicant’s representative (Disabled American Veterans):

 7. After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current General Under Honorable Conditions discharge to that of Honorable.

The FSM served on active service from February 19, 1987 to September 20, 1988 at which time he was discharged due to misconduct, minor disciplinary infractions.

The FSM contends the current discharge is improper because his ability to serve was impaired by racial discrimination, his youth and immaturity. He states that under the current standards the same discharge would not have been received for the minor or isolated incidents that occurred.

This creates a need for a review of the application of the standard, for the Board to determine that the applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 (c), Par. (f) (1).
In continuance, the FSM goes onto explain that an additional problem with his active duty was during March he had surgery on his knee, was given leave afterwards, so he flew home to California. While on leave he re-injured his knee and was admitted to the Long Beach Naval Hospital and was informed there that orders were being changed to have the FSM remain there for six months on limited duty. That he had also requested a promotion for which he maintains he was unjustly passed over due to problems with the Supervisor.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.
We ask for the Board’s 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:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     860731 - 870218  COG
          Active: USN                        None
Period of Service Under Review :
Date of Enlistment: 870219               Date of Discharge: 880920

 Length of Service (years, months, days):
         Active: 01 06 12
          Inactive: None
Age at Entry: 19                          Years Contracted: 4

Education Level: 10                        AFQT: 51
Highest Rate: OSSA

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 2.80 (1)    Behavior: 2.80 (1)                OTA: 2.80

 Military Decorations: None
Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 20
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct - minor disciplinary infractions, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

880311:  UA from FACSFAC JAX FL since 0800, 880311.
880313:  Surrendered onboard NAVHOSP LONG BEACH CA at 2149 880313. Retained onboard for medical treatment (Discharged to 21 days CONV Leave by NAVHOSP LONG BEACH on 880318 to expire onboard FACSFAC JAX FL at 0900, 880409).

880409:  UA from FACSFAC JAX FL since 0900, 880409. Intentions unknown.
880427:  Surrendered onboard FACSFAC JAX FL at 2307, 880427. Retained onboard.
880502:  Retention Warning from [FACSFAC JAX FL]: Advised of deficiency (Two periods of unauthorized absence over leave; 11-13 March 1988 and 9-27 April 1988), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880630:  NJP for violation of UCMJ, Article 86: Unauthorized absence less than 24 hours, violation of UCMJ Article 92: (2 specifications), Disobey a lawful given order.
         Award: Forfeiture of $376.00 pay per month for 2 months (1 month suspended for 6 months), restriction to FACSFAC JAX FL for 30 days (suspended for 6 months), extra duty for 30 days, reduction to E-1. No indication of appeal in the record.
880716:  UA from FACSFAC JAX FL since 2345, 880716. Intentions unknown.

 880717:  Surrendered onboard FACSFAC JAX FL at 0745, 880717. Retained onboard for disciplinary action.
880720:  NJP for violation of UCMJ, Article 86: Unauthorized absence on or about 2345, 880716 to 0745, 880717.
         Award: Restriction for 45 days (30 days of which vacated suspension from CO’s NJP dated 880630). Forfeiture of $335.00 pay per month for 2 months (1 month of which vacated suspension from CO’s NJP dated 880630). No indication of appeal in the record.
880722:  Applicant notified of intended recommendation for discharge under honorable conditions (general) by reason of misconduct due to a minor disciplinary infractions.
880725:  Applicant advised of his rights and having elected 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.
880801:  Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to minor disciplinary infractions.
880909:  CNMPC directed the Applicant's discharge under honorable conditions (general) by reason of misconduct due to minor disciplinary infractions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19880920 under honorable conditions (general) for misconduct due to minor disciplinary infractions (A). The Board presumed regularity in the conduct of governmental affairs (B). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).
Issues 1-4. The Applicant states his discharge was based on one isolated incident with no other infractions. The record documents several disciplinary infractions, not one incident. When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as general (under honorable conditions) 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. The applicant’s service was marred by the award of nonjudicial punishment (NJP) on 2 occasions for violations of the Uniform Code of Military Justice (UCMJ). The applicant’s misconduct included violations of articles 86 and 92. The applicant’s conduct and proficiency markings, which form the primary basis for determining the character of his service, reflect his misconduct, and fall below that required for an honorable characterization of service. An upgrade to honorable would be inappropriate. Relief is therefore denied.

Issues 5 & 6. The NDRB recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women willing to ensure the hardships and sacrifices required in order to serve their country. It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharges. In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. Relief denied.

Issue 7. The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, a procedural error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident during the Applicant’s enlistment. Relief not warranted.




Pertinent Regulation/Law (at time of discharge)
A. The Naval Military Personnel Manual, (NAVPERS 15560-A, effective 870615 - 890110), Article 3630600, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT.

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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