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Docket No. ND04-01096

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

ex-ABHAR, USN
Docket No. ND04-01096

Applicant’s Request

The application for discharge review was received on 20040622.  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 20050107.  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.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I am respectfully requesting for my OTH discharge to be upgraded to an honorable discharge.  My whole reason for wanting out of the USN was for me to stay at home in Hampton V.A. and ensure the safety of my children.  You see my x-wife had started using crack cocaine after about my 3^rd deployment her reason being that she was lonely and missed me.  My sons were being left alone for long periods of time, left with strangers, they even ended up in a foster home.  I had to go get them when we pulled back in.  When I explained my situation to the appropriate individuals on my command (USS Theodore Roosevelt CVN-71) instead of them trying to get me some time to get my personal affairs in order, they would send me to the Chaplain and other counselors which I considered a waste of time because my sons were still being severely neglected whenever we deployed back out to sea, because counseling me couldn’t change the fact that my “wife” was on drugs.  So after so much wasted time and them turning a deaf ear to me I decided to just try to make them kick me out and thats what I did.  Im happy to say that I did save my children from being taken by CPS but Im sad to say that my discharge isnt an honorable for it.  Everythin on this document is the truth and all should be in my military record.  Please upgrade my discharge, this OTH is still hurting me to this day 8 years later.”

Documentation

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

Applicant’s DD Form 214 (2 copies)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	931207 - 940105	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  940106		Date of Discharge:  960731

Length of Service (years, months, days):

	Active:    02  06  27	Does not exclude lost time
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  54

Highest Rate:  ABHAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.70 (2)	Behavior:  3.60 (2)		OTA:  3.70

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, SASM with Bronze Star, NUC, AFSM

Days of Unauthorized Absence:  57

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:

960219:	Applicant to unauthorized absence 0700, 960219.

960319:	Applicant missed ship’s movement.

960415:	Applicant from unauthorized absence 1300, 960415 (57 days/surrendered).

960425:	NJP for violation of UCMJ, Article 91: Disrespect toward a petty officer on 960416, by using disrespectful language toward him, violation of UCMJ, Article 128: Simple assault on 960423 by grabbing another service member around the throat, violation of UCMJ, Article 134: Communicating a threat to a petty officer on 960416 by saying, “I’ll kick your butt.”
	Award: Forfeiture of $490 per month for 2 months, confinement on bread and water for 3 days, reduction to E-2.  No indication of appeal in the record.

960523:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86:
	Specification: Unauthorized absence from 960219 to 960415.
	Charge II: violation of the UCMJ, Article 87:
	Specification: Missed ship’s movement on 960319.
	Finding: to Charge I and II and the specifications thereunder, guilty.
	Sentence: Forfeiture of $580.00, confinement for 30 days, reduced to E-1.
	CA action 960625:  Sentence approved and ordered executed.

960523:	Applicant to confinement.

960613:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by your nonjudicial punishment of 960425 and your summary court-martial of 960523.

960613:	Applicant advised of 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.

960616:	Applicant from confinement.

960710:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

960726:	Commander, Carrier Group EIGHT 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 19960731 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 family 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.  The Applicant has provided no evidence to support his claim that his misconduct took place in order to address the safety of his children.  His service record is marred by award of nonjudicial punishment (NJP) for violating the UCMJ, Articles 91 and 128 and summary court-martial for violating the UCMJ, Articles 86 and 87 thus substantiating his misconduct.  An upgrade to honorable conditions would be inappropriate.  Relief denied.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.   

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 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review 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.