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Docket No. ND03-00171

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

ex-SR, USN
Docket No. ND03-00171

Applicant’s Request

The application for discharge review, received 20021106, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions.  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 20031003.  After a thorough review of the 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 character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.  Applicant discharged in absentia.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

“1.  My discharge, I believe was inequitable, due to one 3 day period of UA.

2.  Also that my chief and I had a personality conflict resulting in my resistance of wanting to be in service.”

3.  “To Whom It May Concern:

I am sending thins in accordance with papers and files I have received to explain certain aspects of my military service so that you may have a better understanding of why I believe that I should be awarded previously mentioned action.  My military service although, not perfect was in best interest.  I had a few periods of absent without leave.  Non extending three days to my knowledge.  At the time of service I was only 18-20 years of age.  Now I understand that there is still no excuse but, I do however wish to express the fact that I was immature and did not fully understand my responsibilities in terms of government service.  I believed that it was like any other job I had, had and that when you had a problem you just said you had one and it was to be resolved and if not it was no big deal to just up and leave and or fight about it.  I did realize however to late that this was not a correct course of action to be taken with the United States Government.  I can not change what I did nor how I acted back at my time of service.  However, I can state that I was immature and had certain problems.  As to my service being dishonorable I strongly feel that I was immature and had certain problems.  As these problems arose I repeatedly asked and petitioned to be allowed to attend corpsman school in which I was denied every time.  I believed that this ultimately led to my poor decisions and discharge.  As these problems arose I repeatedly asked and petitioned to be allowed to attend corpsman school in which I was denied every time.  I believed that that would have been my best course of action to serve the USN.  My chief did not believe so advising me that I could not come back to submarine duty unless I was a chief and that would take a long time.  Repeatedly telling the chief it did not matter it still did not alleviate the problem that I was not allowed to transfer.  At the time I was a striker and did not have a specific classification and it was my understanding that I could pick.  This caused serious tension between the chief and I and that led to the immaturity mistakes that I made.  I respectfully ask that you take these events into consideration before making your decision.  Just to shed some light I am a currently certified EMT with the state of Ohio and if given the chance I could have been serving the USN instead of being dismissed as I was.  Thank you for your time and consideration I hope this has helped in furthering my case in the correct direction.  Once again thank you and have a good day.”

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)	19901222 - 19910624	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  19910625			Date of Discharge:  19930817

Length of Service (years, months, days):

	Active:    02  01  23	Does not exclude lost time
	Inactive:  None

Age at Entry:  17  Parental Consent 		Years Contracted:  4

Education Level:  12				AFQT:  59

Highest Rate:  FA/SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.90 (2)	Behavior:  1.80 (2)		OTA:  1.90

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  4

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

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

Chronological Listing of Significant Service Events:

920204:	Counseling: Advised of deficiency (frequent involvement with civilian authorities), notified of corrective actions and assistance available.

920331:	Civil Conviction:  Traffic Court of the City of Norfolk for violation of Hit and run, following to close and failure to carry an operator’s license.
Sentence: Fine $150.00, confinement for 30 days.  Confinement suspended.
921113:	NJP for violation of UCMJ, Article 86: Unauthorized absence on 0730-1600, 921105, violation of UCMJ, Article 92: Failure to obey order or regulation on 921105.
	Award: Forfeiture of 1/2 per month for 2 months, correctional custody for 30 days, oral reprimand, reduction to SR.  Forfeiture and reduction suspended for 6 months.  No indication of appeal in the record.

921113:	Retention Warning: Advised of deficiency (Unauthorized absence and failure to obey order or regulation.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
	
921218:	Civil Conviction:  Circuit Court of the City of Norfolk for violation of failure to pay restitution.
Sentence: Pay $1,082.17, plus cost and interest to plaintiff by default judgment.

930226:	Retention Warning:  Advised of deficiency (Qualifications: 1. You failed to achieve required progress towards qualification as Topside Sentry and Petty Officer of the Deck, 2. You failed to achieve required progress towards qualification in submarines, even after all requirements to qualify Duty Quartermaster, Quartermaster of the Watch and Fathometer Operator was suspended.  Respect towards seniors: 1. You were disrespectful toward the Chief of the Watch and Diving Officer of the Watch while you were under their direction.  2.  You were disrespectful to a senior petty officer when he counseled you concerning extra military instruction (EMI).), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
	
930303:	Vacate suspended forfeiture for 2 months and reduction to SR awarded at CO’s NJP dated 921113.

930303:	NJP for violation of UCMJ, Article 91: Insubordinate conduct toward warrant officer, non-commissioned officer or petty officer on 930301, violation of UCMJ, Article 92: Failure to obey an order or regulation on 930301, violation of UCMJ, Article 117: Provoking speeches or gestures on 930301, violation of UCMJ, Article 134: Threat, communicating on 930301.
	Award:  Forfeiture of $407 per month for 2 months, restriction for 60 days, extra duty for 45 days, reduction to E-X.  No indication of appeal in the record.

930305:	Applicant’s period of restriction awarded at CO’s NJP dated 930303 reduced to 45 days and 45 days of concurrent extra duty.

930708:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  [Extracted from Commanding Officer’s message dated 930810.]

930708:	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.  [Extracted from Commanding Officer’s message dated 930810.]

930708:	Applicant to unauthorized absence 0730, 930708.

930712:	Applicant from unauthorized absence 0730, 930712 (4 days/surrendered).

930810:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to civilian conviction.

930813:	BUPERS 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, in absentia, on 19930817 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 Applicant states that his discharge was inequitable because he only had one 3 day UA, he had a personality conflict with his chief, and he was immature and did not fully understand his responsibilities in terms of government service.

The record shows that the Applicant had multiple UA periods during his enlistment (25-28 January 1992, 5-6 November 1992, 23 July 1993, 6-7 July 1993, 8-12 July 1993, in addition to being discharged in absentia on 17 August 1993.  The Applicant’s personality conflict with his Chief and the Applicant’s immaturity are irrelevant and have no bearing on the misconduct that was committed.  The Applicant’s violations of the UCMJ include; two civil convictions, 2 NJPs, as well as violation of the retention warnings issued on 921113 and 930226.  The discharge was proper and equitable.  Relief denied.

Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No errors or inequities were discovered in the execution of the Applicant’s discharge.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Outstanding post-service conduct, 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 can be considered.  Examples of documentation to forward to the Board include educational pursuits, verifiable employment record(s), documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle (if appropriate).  At this time, the applicant has not provided any documentation for the Board to consider.  Therefore, no relief will be granted.

He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his 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 5, effective 
05 Mar 93 until 21 Jul 94, 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 "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.
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