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NAVY | DRB | 2004_Navy | ND04-00763
Original file (ND04-00763.rtf) Auto-classification: Denied


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


ex-EMSA, USN
Docket No. ND04-00763

Applicant’s Request
The application for discharge review was received on 20040414. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing discharge review in Washington, D.C. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Board first conducts a documentary record review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041029. 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 3630605.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as stated
Applicant’s issues, as stated on the application:
1. “I was mistreated. (Disliked by crew members)”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Letter of Appreciation
 Letter of Commendation (2 copies)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     941216 - 950104  COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 950105               Date of Discharge: 970710
Length of Service (years, months, days):

          Active: 02 06 06 (Does not exclude lost time)
          Inactive: None

 Age at Entry: 23                          Years Contracted: 4

Education Level: 12                        AFQT: 39

 Highest Rate: BMSN
Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.00 (2)    Behavior: 2.00 (2)                OTA: 2.25
Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR

 Days of Unauthorized Absence: 6
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.

 Chronological Listing of Significant Service Events :

960125:  Apprehended by civilian authorities at 2245. UA since 1200.
960301:  NJP. No other information found.
960808:  To UA, at 0700.
960812:  Surrendered onboard USS Yorktown at 0700.
960816:  NJP for violation of UCMJ, Article 86: UA.
         Award: Forfeiture of $490 per month for 2 months, restriction and extra duty for 45 days, reduction to BMSN (suspended for 6 months). No indication of appeal in the record.
970624:  NJP for violation of UCMJ, Article 128: Assault consummated by battery; violation of UCMJ, Article 134: Communicating a threat.
         Award: Restriction and extra duty for 45 days, reduction to BMSA. No indication of appeal in the record.
No discharge package

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970710 under other than honorable conditions for misconduct due to commission of a serious offense (A). 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 (B and C). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).
Issue 1. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor. The Applicant’s service was marred by award of nonjudicial punishment (NJP) on three occasions for violations of UCMJ, Articles 86, 128, and 134. 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 or under honorable (general) characterization of service. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.
The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety is evident during the Applicant’s enlistment. Additionally, 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. Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his 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), Change 14, effective
03 Oct 96 until 971212, Article 3630605, 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 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.
C. 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.
D. 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.


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      



BOARD MEMBERS RECORD OF VOTE

BOARD MEMBER                       CHARACTER                          BASIS/REASON

T. B. GALVIN, COL, USMC          NO CHANGE                          NO CHANGE
 Presiding Officer
  
A. KOLKMEYER, LTCOL, USMC        NO CHANGE        NO CHANGE
 Member
  
W. BRIGGS, LTCOL, USMC   NO CHANGE                          NO CHANGE
 Member
  
J. ZWILLER, CAPT, USMC   NO CHANGE                         NO CHANGE
 Member
  
 B. DUNCAN, MAJ, USMC              NO CHANGE                          NO CHANGE
Recorder



Recorder’s Signature:_____________________________________________


Presiding Officer’s Signature:_______________________________________



A. The Naval Military Personnel Manual, (NAVPERS 15560C, Change 14, effective 03 Oct 96 until 11 Dec 97, Article 3630605, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT COMMISSION OF A SERIOUS OFFENSE , states:
1. Basis. A member may be separated based on commission of a serious military or civilian offense, when:
a. the specific circumstances of the offense warrant separation; and
b. the member has committed an offense for which a punitive discharge would be authorized by the Manual for CourtsMartial, Appendix 12, for the same or a closely related offense.

2. Procedures

a. The Administrative Board procedure (MILPERSMAN 3640200.7 and 8) shall be used except when the commanding officer believes that the offense committed does not warrant an Other Than Honorable characterization of service under MILPERSMAN 3610250.2b(3). In such cases, the Notification Procedure (3640200.5 and 6) shall be used.
b. The Administrative Board procedure (MILPERSMAN 3640200.7 and 8) must be used when processing misconduct:

 (1) which resulted in, or had the potential to result in death, or serious bodily injury (this can include spouse and child abuse incidents), such as but not limited to: homicide, arson, armed robbery, etc.

(2) involving sexual behavior that deviates from socially acceptable standards of morality and decency, including, but not limited to:
(a) lewd and lascivious acts;
(b) sodomy (forcible heterosexual or child molestation);

(c) indecent assault;
(d) indecent acts; and
(e) indecent exposure.

Note that if circumstances involve an incestuous relationship, commanding officers shall notify Chief of Naval Personnel (CHNAVPERS) (Pers661) immediately upon discovery. Per OPNAVINST 1752.2A, Pers661 will review the case for referral to the Family Advocacy Program; if member is not accepted, commanding officers will be directed to process the member for separation. Note that acceptance into Family Advocacy Programs run by Family Service Centers at local commands does not constitute formal acceptance into the Navy's Family Advocacy Program.

(3) misconduct involving sexual harassment. Following disciplinary action, if appropriate, a member must be processed for separation on the first substantiated incident of sexual harassment involving any of the following circumstances:

(a) threats or attempts to influence another's career or job for sexual favors;

(b) rewards in exchange for sexual favors; or

(c) physical contact of a sexual nature which, if charged as a violation of the Uniform Code of Military Justice (UCMJ), could result in a punitive discharge.

Note that an incident is substantiated if there has been a nonjudicial punishment or courtmartial conviction, or the commanding officer is convinced, based on the preponderance of the evidence that sexual harassment has occurred. All forms of sexual harassment not mentioned above must still be handled administratively (i.e.; NAVPERS 1070/613, Administrative Remarks (Page 13) counseling, letters of instruction, nonpunitive letters, remarks in evaluations, etc.).

c. Administrative separation processing is mandatory for reasons listed in paragraph 2b above.

d. Members must be dual or multiple processed where appropriate, for all reasons [for] which minimum [sic (minima)] criteria is [sic (are)] met.

3. Characterization or Description

a. Normally will be under Other Than Honorable conditions if the Administrative Board procedures were used; however
b. Characterization of service as General may be assigned when warranted under paragraph 2b of MILPERSMAN 3610250.

 c. For respondents who have completed entry level status, characterization of service as Honorable is not authorized unless the respondent's record is otherwise so meritorious that any other characterization would be clearly inappropriate.

 d. When characterization of service under Other Than Honorable is not warranted for a member in entry level status, the separation shall be described as Entry Level Separation per paragraph 3a of MILPERSMAN 3610250.

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