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Docket No. ND02-01042

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

ex-SHSR, USN
Docket No. ND02-01042

Applicant’s Request

The application for discharge review, received 020718, 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 030424.  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, as submitted

1.  Upon my release from the military I was gainfully employed by Wilson & Sons Home Improvement Co. for a year and a half.  Then the use of drugs landed me in prison.  Doing my incarceration at Eastern Correctional Institution in Westover, Md.  I attended a college correspondent course for 2 years.  It was a college correspondent course given by University of Maryland Eastern Shore, and Md State Dept.  When released from prison I went out to be an Assistant Manager at a Golden Corral Family Restaurant in Baltimore County.  But eventually drugs landed me back in prison.  I need my discharge upgraded so I can receive medical help for my addictions.  Please help.

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):

	Inactive: USNR (DEP)	870714 - 871101	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  871102		Date of Discharge:  881101

Length of Service (years, months, days):

	Active:    00  07  29
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  46

Highest Rate:  SHSR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)	Behavior:  3.30 (2)		OTA:  3.00

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  128

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:

880119:	Unauthorized absence from 2300, 880119 to 0010, 880120 (1 hour and 10 minutes) 

880127:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
	Award:  Forfeiture of $100.00 pay per month for 2 months, restriction and extra duty for 10 days.  No indication of appeal in the record.  

880411:	Unauthorized absence from 0700 to 0900, 880411 (2 hours).

880415:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
Award:  Forfeiture of $100.00 pay per month for 1 month, restriction and extra duty for 10 days.  No indication of appeal in the record.

880514	Applicant to UA from USS MCCANDLESS (FF-1084).

880608	Applicant missed ship’s movement.

880812:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 880612 having been an unauthorized absentee since 0700, 880514 from USS MCCANDLESS (FF-1084).

880918:	Applicant apprehended by civil authorities on 880918 (0440) at Meridian MS.  Returned to military control 880918 (0445).  Retained onboard pending return to parent command.

881008:	NJP for violation of UCMJ, Article 86:  Unauthorized absence 880514 to 880918 (128days/A); violation of UCMJ Article 87: (2 Counts), missing movement.
	Award:  Forfeiture of $330.00 pay per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

881008:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

881008:	Applicant advised of his 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 and the right to submit statements on own behalf either verbally or in writing before an administrative board or in writing if an administrative board is convened.

881012:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments (verbatim):  [In less than three months time onboard USS MCCANDLESS, SHSR E_ (Applicant) has twice wrongfully absented himself from this unit.  His latest absence spanned a period in excess of four months which coincided with extensive preparations for overseas deployment.  SHSR E_ (Applicant) consequently missed the sailing of MCCANDLESS for a major FLEETEX and overseas deployment.  Since his apprehension and return to MCCANDLESS, SHSR E_ (Applicant) has failed to accept responsibility for his actions and seems only more resolved to avoid the remainder of his obligated service.  Such disregard of regulations further amplifies his immaturity and negates any potential for reform and future worthwhile naval service.  SHSR E_ (Applicant) is strongly recommended for immediate separation from the naval service with a discharge characterization as other than honorable.  MCCANDLESS is located OUTUS.]

881015:	CNMPC directed the Applicant's discharge under other than 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 881101 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 and D).

Issue 1:  The NDRB has no authority to upgrade a discharge for the sole purpose of obtaining VA medical benefits as requested by the Applicant.  Regulations limit the Board’s review to a consideration of the propriety and equity of a discharge.  The Applicant’s discharge was proper and equitable and accurately reflects his service to his country.  The Applicant’s summary of service clearly documents the reasons for the Applicant’s other than honorable characterization of service.  A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a sailor.  The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects his disobedience of the orders and directives that regulate good order and discipline in the naval service, and falls far short of that required for an honorable characterization of service.  The record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  An upgrade to honorable would be inappropriate.  Relief denied.

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.  After a complete review of the record, including the evidence submitted by the Applicant, the Board determined that the Applicant’s discharge was proper and equitable and that his evidence of post service accomplishments was found not to mitigate the misconduct for which he was discharged.  Relief denied.

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 15560A), effective 15 Jun 87 until 
10 Jan 89, Article 3630600, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

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

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/A9221/A9319/A9445/