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

ex-AR, USNR
Docket No. ND99-00373

Applicant’s Request

The application for discharge review, received 990121, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant did not list a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 990927.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  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

Prior to enlistment, my step-father, Dennis Watkins, had been diagnosed with cancer.  It was hard coping with the military life, during boot camp and A School.  But I really tried to hang in there.  It was hard though. I discussed the issues with the Master Chief and the duty chaplains.  But to no prevail a solution never resolved.  I needed to be at home with my family, helping my mother care for my grandmother, my sister, and my children.  I asked my CO for time off- He stated “no it was war-time, peoples family members pass occasionally, so deal with it”.  I even spoke with the chaplain on the ship and they advise to try and work it out with my CO.  I couldn’t take it anymore so I left to my home in Victorville, CA.  I left a note with my squadron and advised them I was returning once my family situation was resolved.  I helped my family pull together for five months then I turned myself into George Air Force Base.  They processed my paperwork and returned me to San Diego- 32nd St Naval Station in a temp unit to await a court hearing.  During this time I got stabbed in front of the Base and was in Balboa Hospital a couple of days.  Finally my case went to court martial and the judge sentenced me to 10 days in the brig and OTH discharge.  I want to go on with my life now.  I’m 29 years old, I need to get this behind me with the understanding that I have taken care of this.  Pls help!!

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Copy of DD Form 214
Certificate of Death dtd 880728
Affidavit to Amend a Record #3883600

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

		Inactive: USNR (DEP)	870827 – 871004  COG

Period of Service Under Review:

`Date of Enlistment:  871005		Date of Discharge:  891006

Length of Service (years, months, days):

	Active:    02  00  01
	Inactive:  00  01  07

Age at Entry:  18			Years Contracted:  3

Education Level:  12			AFQT:  51

Highest Rate:  AR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.80(1)	Behavior:  3.20 (1)		OTA:  3.20

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  151

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:

880628:	NJP for violation of UCMJ, Article 86 (7 Specs):  Failure to go to appointed place of duty.
	Award:  Forfeiture of $335 per month for 1 months, restriction and extra duty for 14 days.  (Suspend $235 per month for 1 month suspended six months).  No indication of appeal in the record.

880925:	NJP for violation of UCMJ, Article 117:  Provoking speech and gestures.
	Award:  45 Days restriction and extra duty.  Vacation of suspended forfeiture $235 per month for 1 month.  No indication of appeal in the record.

880928:	Retention Warning:  Advised of deficiency, insubordination towards superiors and lack of motivation in performance of duties, notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

890511:	Special Courts Martial for UCMJ Article 86:  Unauthorized absence (151days).
Sentence:  10 days confinement, Restriction for 60 days, Hard labor without confinement for 60 days, forfeiture $200 pay for 1 month, reprimand.

890731:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

890731:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights. 

890814:	Transient Personnel Unit San Diego, CA recommends to CNMPC applicants separation due to commission of a serious offense with a discharge of under than other than honorable conditions.

890831:	Chief on Naval Personnel recommends to Secretary of the Navy Discharge of applicant with other than honorable discharge due to commission of a serious offense.

890915:	Assistant Secretary of the Navy directs separation with an other than honorable discharge by reason of misconduct due to commission of a serious offense.

890925:	CNMPC authorizes applicant’s discharge for commission of a serious offense, and discharge of other than honorable.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 891006 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,D and E).

The applicant stated he tried to serve to the best of his ability, but was unable to do so due to personal reasons.  The applicant enclosed the death certificate of his step-father to substantiate his assertion of hardship.  There is no documentation of the applicant’s alleged attempts to resolve his issues either formally or informally with the chain of command.   Relief based on personal hardship is denied.

 The NDRB recognizes that serving in the Navy and Marine Corps is very challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most Sailors and Marines serve honorably and well and therefore earn honorable discharges.   In fairness to those Sailors and Marines, commanders and separation authorities are tasked to ensure that undeserving Sailors and Marines receive no higher characterization than is due. While the NDRB respects the fact that the applicant tried, his service is equitably characterized as being performed under other than honorable conditions. Relief is not warranted.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A), Change 8, effective 
21 Aug 89 until 14 Aug 91, Article 3630600, 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 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.

E.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 86, for unauthorized absence for a period in excess of 30 days if adjudged at a Special or General Court-Martial.

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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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
		Washington Navy Yard
		720 Kennon Street SE Rm 309
		Washington, D.C.  20374-5023