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Docket No. ND03-01167

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

ex-SR, USN
Docket No. ND03-01167

Applicant’s Request

The application for discharge review was received on 20030625.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests 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 20040504.  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 received 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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  I am doing an appeal to the office of the Veteran’s Affairs in attempt to raise my other Than Honorable discharge to be raised to Honorable.  I feel the status should be raised as I made great sacrifice to serve my country and I choose to have the discharge when presented with option while under strenuous conditions.  The discharge was presented after 18 months of service within the Navy after “missing ship’s movement” due to the following conditions.  When given the option of an early discharge.  I chose to accept the discharge as my fiancées grandmother, who lived with her at the time and until her death, was very ill and bed ridden.  I was helping her as much as possible to care for her grandmother and taking the other than Honorable discharge was a better option for us at the time.  I regret not being able to continue my service to my country and it took long deliberation to come to the conclusion.  At the time I could be more accessible to her and better able to give her the support she needed in caring for her grandmother.  I thank you for taking the time to consider my appeal.”

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)	910812 - 920209	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  920110		Date of Discharge:  930615

Length of Service (years, months, days):

	Active:    01  01  05
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  86

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.15 (4)	Behavior:  2.40 (4)		OTA:  2.45

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  62

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:

920824:	Disenrolled from the Nuclear Power Training program for academic failure due to lack of effort.

930104:	Applicant evaluated by a psychiatrist who diagnosed a personality disorder.  The attending psychiatrist advised consideration of administrative separation for unsuitability.  Member does manifest a longstanding disorder of character and behavior which is of such severity as to interfere with serving adequately in the Navy. 

930213:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 930213 having been an unauthorized absentee since 0800, 930113 from USS THEODORE ROOSEVELT (CVN-71).

930417:	Retention Warning:  Advised of deficiency (Failure to obey lawful order to complete Basic DC, 3m 301, and Advanced DC PQS qualifications), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
930419:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86.
	Specification: UA from 930113 to 930315 (62days/S).  Charge II: violation of the UCMJ, Article 87: Miss ship’s movement on 930114.
	Finding:  to Charge I and II, and the specifications thereunder, guilty.
	Sentence:  Confinement for 30 days, forfeiture of $350.00 pay per month for 1 month, reduced to E-1.
	CA action 930419:  Sentence approved and ordered executed.

930421:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason convenience of the government due to personality disorder and by reason of misconduct due to the commission of a serious offense.

930421:	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.

930503:	Commanding Officer recommended discharge under other than honorable conditions by reason of convenience of the government due to personality disorder, and by reason of misconduct due to the commission of a serious offense.

930507:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

930513:	Released from confinement and returned to full duty.  Given 5 days credit for good behavior.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930615 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:  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.  While he may feel that his personal problems were contributing factors, they do not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service.  His service record is marred by a court-martial conviction for unauthorized absence and missing ship’s movement.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls short of that required for an honorable characterization of service.  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, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   

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 or any other evidence relating to his discharge 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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