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NAVY | DRB | 2004_Navy | ND04-00222
Original file (ND04-00222.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND04-00222

Applicant’s Request
The application for discharge review was received on 20031119. 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040728. 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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).





PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

Since my discharge on 12-15-97 I’ve kept a job obtained full custody of m 2 children on Sept 17, 2002, been to Taylor Business Institute for 1 year, took parenting classes, had counseling on my sexuality. I’ve been doing what ever it takes to be responsible, stay out of trouble, to better myself for my children as well as myself. I feel that an upgrade of my discharge would strengthen my career goals as well as well my personal outlook of myself.

 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)     961217 - 961226  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 961227               Date of Discharge: 971215

 Length of Service (years, months, days):

         Active: 00 10 21
         Inactive: None

 Age at Entry: 24                          Years Contracted: 4

Education Level: 12                        AFQT: 56

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.00 (2)    Behavior: 1.50 (2)                OTA: 2 .17

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 29

 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 :


970916:  NJP for violation of UCMJ, Article 86: Unauthorized absence 970818 until 970916 (29days/S), violation of UCMJ Article 87: Missing movement.
         Award: Forfeiture of $450.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
971002:  Medical evaluation by a military psychiatrist indicates the Applicant is considered responsible for his actions. After a conversation with the Command Master Chief of the applicant’s ship prior to their deploying revealed that the command was pursuing administration separation. Expeditious administrative separation had been recommended by the psychiatrist after the member’s first hospitalization in July 97. Once again, the attending psychiatrist recommends expeditious administrative separation in accordance with NAVMILPERSMAN 3620225, NAVMILPERSCOMINST 1910.1D and NAVOP 013/87. Although not imminently suicidal or homicidal, this member is judged to represent a continuing risk to self or others in the future if retained in the military.

         AXIS I: Other Life Circumstances Problems
        
         AXIS II: Personality Disorder Not Otherwise Specified
        
         AXIS III: Elevated LFT’s and LIPASE

971014:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by CO’s NJP on 970916; homosexual conduct as evidenced by member’s statement that he or she is a homosexual or bisexual, or words to that effect, which creates a rebuttal presumption that he or she engages in, attempt to engage in, has a propensity to engage in, or intends to engage in homosexual acts; and convenience of the government-personality disorder as documented in service record.
971014:  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.
971112:  Commanding Officer recommended discharge general under honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by CO’s NJP on 970916; homosexual conduct as evidenced by member’s statement that he or she is a homosexual or bisexual, or words to that effect, which creates a rebuttal presumption that he or she engages in, attempt to engage in, has a propensity to engage in, or intends to engage in homosexual acts; and convenience of the government-personality disorder.

971203:  BUPERS directed the Applicant's 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 19971215 general (under 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).

A characterization of service of under honorable conditions (general) 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 award of nonjudicial punishment (NJP) on one occasion which included violations of the UCMJ that are considered serious offenses. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. An upgrade to honorable is inappropriate. Relief denied.

 The following is provided for the edification of the Applicant. 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 naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. The Applicant has not provided sufficient documentation for the Board to consider. Therefore, relief is inappropriate.

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 or any other evidence relating to his discharge 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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