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NAVY | DRB | 2005_Navy | ND0501024
Original file (ND0501024.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-FA, USN
Docket No. ND05-01024

Applicant’s Request
The application for discharge review was received on 20050602. The Applicant requests that his 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 designate a representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20051020. After a thorough review of all available 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 characterization of the discharge shall not change. The discharge shall remain Under Honorable Conditions (General) by reason of misconduct due to commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 No issues were submitted by the Applicant.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19890718 – 19890801               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19890802             Date of Discharge: 19911102

 Length of Service (years, months, days):

         Active: 03 03 01
         Inactive: None

 Time Lost During This Period (days):

         Unauthorized absence: none
         Confinement:              none

 Age at Entry: 22

 Years Contracted: 4

Education Level: 12                                 AFQT: 52

 Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.5 (4)     Behavior: 3.6 (4)        OTA: 3 .50

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214) : Battle “E”, Southwest Asia Service Medal with 1 Star, Sea Service Deployment Ribbon, National Defense Service Medal, Meritorious Unit Commendation.


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

UNDER HONORABLE CONDITIONS (GENERAL)/ Misconduct - commission of a serious offense , authority: MILPERSMAN, Article 3630600.
Chronological Listing of Significant Service Events :

910920:  Applicant received sexual harassment and sexual misconduct training onboard USS L.Y. SPEAR (AS-36).

920722:  Unauthorized absence at 0645, 920722.

920722:  Returned from unauthorized absence at 0700, 920722 (15mins).

920728:  Unauthorized absence at 0645, 920728.

920728:  Returned from unauthorized absence at 0700, 920728 (15mins).

920802:  Unauthorized absence at 0730, 920802.

 920802:  Surrendered onboard USS L. Y. SPEAR (AS-36), 0800, 920802 (30mins).

920819:  Retention Warning: Advised of deficiency (dereliction of duty, by failing as a watchstander to conduct your watch), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
920909:  Unauthorized absence at 0645, 920909.

 920909:  Surrendered onboard USS L. Y. SPEAR (AS-36), 0715, 920909 (30mins).

920924:  Medical Department USS L. Y. SPEAR (AS-36) referred Applicant to DAPA following alcohol poisoning incident.

921007:  Unauthorized absence at 0645, 921007.

 921007:  Surrendered onboard USS L. Y. SPEAR (AS-36), 0715, 921007 (30mins).

921009:  NJP for violation of UCMJ, Article 92: On or about 24 September 1992 fail to obey L. Y. SPEARS 5810.2, an order it was his duty to obey, by touching the hand and forehead and then feeling the leg starting above the knee and moving downwards to the mid-shin of MMFA H_, USN.
 Violation of UCMJ, Article 134: Drunk and disorderly on or about 24 September 1992.
          Award: Oral reprimand, restriction to L. Y. SPEARS for 45 days, forfeiture of $400.00 pay per month for 2 months, reduction to E-2, extra duty for 45 days. No indication of appeal in the record.

921014:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by Commanding Officer’s Nonjudicial Punishment of 9 October 1992.
921014:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation and to submit statements in my own behalf either verbally or in writing before an administrative board or in writing if an administrative board is not convened.
921019:  Applicant’s statement waiving the right to submit a statement.

 921022:  Commanding Officer, USS L. Y. SPEAR (AS-36), recommended discharge with a under honorable conditions (general) by reason of misconduct due to commission of serious offense as evidenced by Commanding Officer’s Nonjudicial Punishment of 9 October 1992. Commanding Officer’s comments: “S_’s (Applicant) actions clearly violate the Navy’s policy on sexual harassment and treating people with human dignity. Therefore, I strongly recommend that he be separated from the Navy. I further recommend that the characterization of service be General under Honorable Conditions.”

921030:  BUPERS directed the Applicant's discharge with a under honorable conditions (general) by reason of misconduct commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19921102 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of general (under honorable conditions). After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

When the service of a member of the U.S. Navy has met the standard of acceptable conduct and performance, it is appropriate to characterize that service as honorable. A general (under 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. The Applicant’s service was marred by nonjudicial punishment (NJP) for violations of the UCMJ Article 92 (failure to obey) and Article 134 (drunk and disorderly), a retention warning for dereliction of duty and five place of duty unauthorized absences. Each violation of Article 92 and 134 is defined as the commission of a serious offense, the misconduct for which the Applicant was discharged. Separation under these conditions generally results in a service characterization of less than honorable. Relief is not warranted.

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 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 provided no documentation for the Boards consideration.

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 documentation to support any claims of post-service accomplishments or any other evidence related 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), effective 15 Aug 91 until
04 Mar 93, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

 B. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 92 (failure to obey) and Article 134 (drunk and disorderly aboard ship).

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

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 “ http://Boards.law.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:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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