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

 ex-HM2, USN
Docket No. ND01-01115

Applicant’s Request

The application for discharge review, received 010820, 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 any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020604.  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: GENERAL UNDER HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  My discharge was solely based on one incident in 8 years of service with no other incidents.

2.  My discharge was based upon my commanding officer and his staff attempt to not reveal charges of sexual conduct between HM3 C____ A_____ and another enlisted person (Sexual Harassment case).

3.  My discharge of the offense I was charged, does not fit punishment of which was originally too harsh. 

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):

	Active:   USN			880525 - 920206	HON
	Inactive: USNR (DEP)	880520 - 880524	COG

Period of Service Under Review:

Date of Enlistment:  920207		Date of Discharge:  960215

Length of Service (years, months, days):

	Active:    04  00  08
	Inactive:  None

Age at Entry:  26			Years Contracted:  6

Education Level:  12			AFQT:  54

Highest Rate:  HM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.95 (4)	Behavior:  3.95 (4)		OTA:  3.95

Military Decorations:  None

Unit/Campaign/Service Awards:  GCA, OSR (2ND), NDSM 

Days of Unauthorized Absence:  2 

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

GENERAL UNDER HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

920207:	Reenlisted at NSHS SAN DIEGO, CA for 6 years.

940627:	Retention Warning:  Advised of deficiency (Letter of Indebtedness from Kay Jewelers to Commanding Officer dtd 940523.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
951026:	NJP for violation of UCMJ, Article 86: (2 Specs), Spec 1: Did on or about 0500, 950828, without authority, absent himself from his place of duty, to wit: Shipboard Damage Control Training, Fleet Training Center, Mayport Florida and did remain so absent until on or about 0730, 950828 (2hrs/30mins), Spec 2: Did on or about 0730, 950828, without authority, absent himself from his place of duty, to wit: Naval Hospital, Jacksonville, Florida, and did remain so absent until on or about 0730, 950901 (2days); violation of UCMJ Article 92: Failed to obey lawful order issued by Plans, Operations and Medical Intelligence VIA CHCS E-Mail System dated 950727 and was confirmed on 950815 and written TAD Orders dated 950828, did at Naval Hospital, Jacksonville, Florida, failed to obey the same by not attending ship board Damage Control Training at Fleet Training Center, Mayport, Florida.
	Award:  Forfeiture of $661.00 per month for 2 months, restriction and extra duty for 30 days, reduction to E-4.  No indication of appeal in the record.

951226:	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 the findings at Commanding Officer's NJP that you violated a lawful order.

951227:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

960116:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

960205:	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 960215 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).

Issue 1 states, “My discharge was solely based on one incident in 8 years of service with no other incidents.”  The applicant was found guilty at NJP for violation of UCMJ Article 92 (failure to obey a lawful order).  Accordingly, the applicant was processed and separated for commission of a serious offense.  One incident of violating UCMJ, Article 92 is sufficient for administrative discharge processing.  The applicant failed to provide documentation to show that the discharge he received was not properly processed or that it was inequitably assigned.  Relief is not warranted.

Issue 2 states, “My discharge was based upon my commanding officer and his staff attempt to not reveal charges of sexual conduct between HM3 C____ A_____ and another enlisted person (Sexual Harassment case).”  The Board determined this issue has no merit.  The applicant was discharged for the misconduct that he committed.  The applicant was found guilty at NJP for violation of UCMJ, Articles 86 (unauthorized absence), and Article 92 (failure to obey a lawful order).  The discharge was proper and equitable.  Relief denied.

Issue 3 states, “My discharge of the offense I was charged, does not fit punishment of which was originally too harsh.”  Violation of UCMJ Article 92 is punishable by court martial which could result in a punitive discharge, or an Other Than Honorable discharge.  The Board determined the discharge was proper and equitable.  Relief is denied.

The NDRB requested the applicant provide post service documentation to support his request for an upgrade, but the applicant failed to respond to the Board’s written request of 020401. 

The applicant is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 
22 Jul 94 until 02 Oct 96, 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.

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 "afls10.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