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NAVY | DRB | 2004_Navy | ND04-00731
Original file (ND04-00731.rtf) Auto-classification: Denied


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



ex-DCFR, USN
Docket No. ND04-00731

Applicant’s Request
The application for discharge review was received on 20040401. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region. 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) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary review was conducted in Washington, D.C. on 20041008. 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

 Applicant’s issues, as stated on the application:

1. “I stood at Cpts. NJP for dereliction of duty on Aug. 12 1992. I Knew I had done nothing wrong, but the DCA had done some calculations and came up with a different opinion. I knew that I would not win if I disagreed with what he said. I was prepared to get reduced in rate and lose some pay. I did not expect to be discharged. When the Cpt. (Cpt. S_) read his decision I was surprised to say the least, but I was also furious. I was so upset that I did not dispute it even though I knew the facts were wrong.

Immediately after being back home I wanted to do something about it. I did not know how to go about appealing the decision. It has weighed heavily on my heart ever since. I feel that the calculations used against me were wrong and that I should not have forced to stand NJP along side someone who freely admitted that he was at fault. The person I am referring to was Fr. B_ Y_. He admitted that he did'nt check the aft steering space, and I believe he is responsible soley for the flooding of the space . I also feel if the calculations were retaken (for the rate of water coming in from the sump of aft steering) I would, without a doubt,be v e ndicated . I also feel that because I talked to the chaplain about a hardship discharge for some problems that I was having at home I was targeted and punished. I have copies of my evals that showed my homelife was not affecting my work, but my last eval was altered to look as if i was not a good sailor. that eval has been altered from a good eval to a bad one. I have always been very attentive to my work duties before and after the Navy. I suppose I should have been more disagreable during the NJP. I let my anger get in the way of my principles. I have had a long time to think on the whole situation and I have concluded that I feel,I deserve to have my record cleared, and that my VA benefits be restored, I'm willing to serve in the Navy reserve for the full amount of time I served in active duty. ”

 Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Enlisted Performance Evaluation Report for period February 1, 1992 to October 5, 1992 (2 pages)
Enlisted Performance Evaluation Report for period February 16, 1991 to January 31, 1992 (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     900717 - 900912  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 900913               Date of Discharge: 921110

 Length of Service (years, months, days):

         Active: 02 01 28
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 36

 Highest Rate: DCFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.40 (2)    Behavior: 3.40 (2)                OTA : 3.50

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, SASM w/ Bronze Star

 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 :
920303:  Retention Warning: Advised of deficiency (Unauthorized absence from your unit on 0700-0930, 920227.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920410:  NJP for violation of UCMJ, Article 113: Misbehavior of a sentinel or lookout on 920314, violation of UCMJ, Article 92: Dereliction of duty on 920314.
         Award: Reduction to E-1 (Suspended for 1 month). No indication of appeal in the record.
920812:  NJP for violation of UCMJ, Article 92: Dereliction of duty, failed to check after steering on an hourly basis on 920422.
         Award: Forfeiture of $393 per month for 1 month, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
920817:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
920916:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
921005:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

921023:  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 19921110 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: Normally, to permit relief, an impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. The Applicant contends that he did not commit the misconduct for which he was discharged. Regardless of his contentions, there is credible evidence in the record that the Applicant was derelict in his duties. The Applicant’s service was marred by two nonjudicial punishment proceedings for violations of Articles 92 and 113 of the UCMJ. Specifically, the record contains evidence that the Applicant failed in his duty to make hourly inspections of the aft steerage. This dereliction on the Applicant’s part was a contributing factor in the flooding of that compartment. The Applicant’s contentions to the contrary do not rise to the level of substantial and credible evidence this Board requires to refute the government’s presumption of regularity in the conduct of its affairs. Relief denied.

The Applicant contends that he was experiencing family problems during his period of service. 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.

Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. An under other than honorable conditions discharge 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. As noted above, the Applicant’s service was marred by two nonjudicial punishment proceedings. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief denied.

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. 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), 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, Willful dereliction of duty, and Article 113, Misbehavior of a sentinel, if adjudged at a Special or General Court-Martial.

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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