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Docket No. ND02-00856

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

 ex-SR, USN
Docket No. ND02-00856

Applicant’s Request

The application for discharge review, received 020603, requested that the characterization of service on the discharge be changed to entry level separation or uncharacterized.  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 030228.  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, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  I was led to believe I was doing the right thing, not committing a crime.  I was led to believe this by a representative of the United States Military.  For a person of my age, it scarred me for life by putting my trust in my government.

Documentation

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

Letter from L_ M_, undated
Letter from Applicant, unsigned and undated
Letter from a Member of Congress, dated June 19, 2000
Letter to Member, U.S. House of Representatives from National Personnel Records Center, dated June 9, 2000
Statement from Applicant, undated

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR(DEP)		980728 - 990712	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  990713		Date of Discharge:  000103

Length of Service (years, months, days):

	Active:    00  05  21	       (DOES NOT INCLUDE LOST TIME)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  51

Highest Rate:  SR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  96

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).  [Note BUPERSINST 1900.8 list the authority as 3630600 instead of 3630605]

Chronological Listing of Significant Service Events:

980728	Applicant signs Enlistment/Recruitment Document DD Form 4/1 certifying contractual agreement that she (Applicant) is enlisting in the Delayed Entry Program (DEP) with the understanding that she will report to the Dallas MEPS by 0500, 990713 for enlistment in the Regular component of the United States Navy for not less than 4 years.  Applicant agrees to 12 months extension for DT school guarantee.

990617	Applicant signs agreement for 12 months extension for HM school guarantee and Navy College Fund guarantee.

990713	Applicant discharged from the DEP and confirms enlistment contract with the United States Navy this date.  Oath administered, subscribed and duly sworn at Dallas MEPS.  

990713	Applicant signed Agreement to Extent Enlistment NAVPERS 1070/621, with the understanding that new contract expiration date would be 040712.

990820	Recruit Training Command (RTC) Great Lakes, IL reported Applicant to unauthorized absence.

990913	RTC GREAT LAKES informed Applicant’s father of Applicant’s 
		unauthorized absence and requested she surrender to the nearest naval or 
		other military activity immediately.  Father was also informed of the 
 		gravity of the offense and she will be declared a deserter in 7 days.

990920:	Applicant declared a deserter.

991124	Applicant returned to military custody at 1605 this date.  Apprehended by Great Lakes Police Department and turned over to Recruit Training Command (RTC) Security from deserter status.  Transported to ‘sleepers’ by direction of Commanding Officer, RTC.

991130	Applicant’s EAOS adjusted from 03JUL12 to 03OCT16 to reflect time lost due to unauthorized absence of 96 days.

991208:	NJP for violation of UCMJ, Article 86: Absent from place of duty 0700, 990820 until 1605, 991124 (96 days/apprehended).
	Award:  Forfeiture of $200 per month for 1 month, restriction and extra duty for 14 days.  No indication of appeal in the record.

991210:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidence NJP of 991208.

991210:	Applicant advised of her rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation 

991217:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by NJP of 991208.  Commanding Officer’s comments (verbatim):  [SR M_ (Applicant) is an administrative and discipline burden.  Her conduct represents a significant departure from the conduct expected from members of the naval service.  SR M_ (Applicant) has no potential for further useful naval service.  I recommend separation from the naval service with an Other Than Honorable discharge.]

991223:	Commander, Naval Training Center, Great Lakes, IL directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 000103 under other than honorable conditions for misconduct due to absent without leave - 30 days or more (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 error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the Applicant’s enlistment.  The Board found the Applicant’s age, education level, and test scores qualified her for enlistment.  The Applicant did sign an enlistment contract, take the oath and was under contractual obligation to serve 5 years of active duty in the United States Navy.  The record is devoid of any evidence to support the Applicant’s claim that the recruiter misled her or the she should not be held accountable for her actions.  The Applicant was responsible for her actions and must accept the consequences of her own misconduct.  Relief denied.

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.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, a positive employment record, documentation of community service and certification of non-involvement with civil authorities are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.  

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 additional documentation to support any claims of post-service accomplishments 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), Change 18, effective 
12 Dec 97 until Present, Article 1910-142  [formerly 3630605]. SEPARATION 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 “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

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6750/A9453/A9217/A9231/A9221