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Docket No. ND04-00710

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

ex-EMFA, USN
Docket No. ND04-00710

Applicant’s Request

The application for discharge review was received on 20040325.  The Applicant requests the characterization of service received at the time of discharge be changed to general (under honorable conditions).  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 20041103.  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 1910-142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I believe I am of sound mind writing this to who it concern.  I did my job to the best of my ability.  I kept up on mil qualifications.  My evals where always good never in any serious troubles.  Help out my ship mate above the call of duty in the shop on the boat and on shore the mistake was my fault.  I should have tried to use my chain of command outside of the board w/I rushed off making a wrong decision about the matter at the time I was thinking I would never be promoted further than E-3 (a simple fireman) when I first joined it was to be all I could be.  But after not getting a chance to take rating test after I made E-3.  I acted on emotion it was a bad decision I am sorry for leaving my unit but I couldn’t take the stress so I left the stressful invirorment to clear my head.  I serve 3 of 4 years more than half my time.  Learned my trade and did my job.
Thanks for your time

R_ L_ W_”

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)		950224 - 950611	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  950612		Date of Discharge:  981130

Length of Service (years, months, days):

	Active:    03  05  19	Does not exclude lost time
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  39

Highest Rate:  EMFN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, BER

Days of Unauthorized Absence:  228

*No marks found in service record

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).  

Chronological Listing of Significant Service Events:

950810:	Retention Warning: Advised of deficiency (Failure to disclose arrest, battery, Brunswick, GA, 05-16-94.  Verified through City Circuit Court. Charges dismissed), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

980309:	Applicant to unauthorized absence 0715, 980309.

980331:	Applicant missed ship’s movement.

980409:	Applicant declared a deserter.

980514:	Applicant missed ship’s movement.

981001:	Applicant missed ship’s movement.

981021	Applicant apprehended by civilian authorities at Miami, FL.

981026:	Applicant from unauthorized absence 2315, 981026 (228 days/apprehended).

981027:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86:
	Specification: Unauthorized absence.
	Charge II: violation of the UCMJ, Article 87 (5 specs):
	Specifications 1-5: Missed ship’s movement.
	Finding: to Charge I and II and the specifications thereunder, guilty.
	Sentence: Forfeiture of $617.00, confinement for 30 days, reduction to E-2.
	CA action 981028: Sentence approved and ordered executed.

981027:	Applicant to confinement.

981027:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

981027:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

981028:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.  Commanding Officer’s comments (verbatim): On active duty for just over three years, Engineman Fireman Apprentice W_ (Applicant) was unwilling to adapt to the Navy’s rules and regulations.  On 9 March 1998, he commenced a period of unauthorized absence-which was terminated by apprehension approximately seven months later in Miami.  In the interim, the member missed five ship’s movements.  Testifying at his summary court-martial, the member stated he began an unauthorized absence because he simply wanted to be discharged from the Navy before completing his contractual obligation.  Unable to secure his discharge on any valid legal basis, the member resorted to a lengthy unauthorized absence to meet this goal.  Furthermore, the member expressed no remorse for his misconduct, but made it clear he would continue his path of misconduct until discharged.  In view of the foregoing, I recommend that Fireman Apprentice W_ be separated from the naval service with an Other Than Honorable discharge as expeditiously as possible.

981116:	CNPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct.

981120:	Applicant from confinement.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19981130 under other than honorable conditions for misconduct due to the 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 the environment he worked in was a contributing factor, it does 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 award of summary court-martial for violating the UCMJ, Articles 86 and 87 thus substantiating the misconduct.  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.   At this time, the Applicant has not provided verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  

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 documentation to support any claims of post-service accomplishments or any other evidence related 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 18, effective 
12 Dec 97 until 29 Mar 00, 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.