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Docket No. ND05-00652

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

 ex-AR, USN
Docket No. ND05-00652

Applicant’s Request

The application for discharge review was received on 20050302.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant listed American Legion as the representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that he was approaching the 15-year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington D.C. area.  Applicant did not respond.

Decision

A documentary review was conducted in Washington, D.C. on 20050616.  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 – 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:

“Request for review of discharge or dismissal.

To Whom it May Concern:

I M_ A. P_ (Applicant), would like to appeal to you for consideration of upgrade of my discharge from the United States Navy.  I was in the delayed entry program prior to my active duty status beginning February 05, 1987, ending February 27, 1990.

I had an unstable home life for my entire childhood.  At age 16, I decided that I would leave high school early and enroll in the delayed entry program to the Navy to get away from my past.  At age 17, I was in the Navy.  Looking back, I realize that I was young, naïve and not capable of making informed decisions.

While serving in the Navy from February 05, 1987 to February 27, 1990, I began my initial training for Aviation Electronics Technician training in Millington, Tennessee and did not do well so I chose to go into fleet service.  I served as a Fire Fighter and Aviation Boatswains Mate aboard the U.S.S. America CV-66.  Throughout my time aboard the U.S.S America, I succeeded in my duty as an ABH as well as Fire Fighting.  During my active duty, I was also given the opportunity to attend various courses such as Ship Board and Aircraft Fire Fighting and Emergency Care.  I completed the previous two classes hoping to gain additional training to better serve the United States Navy.  Prior to my discharge on February 27, 1990, I attempted to complete all the duties asked of me.

In the beginning of 1990, I was scheduled to attend a six-month Mediterranean cruise.  At the time, I was a nineteen year old father -to- be.  My spouse was separated from her family and was making references to leaving me and committing suicide if I left on the cruise.  I knew it was wrong to miss a deployment but had no idea how to seek professional help from the Navy in this circumstance.  I did not know of any available resources or options on how to deal with this situation.  I wasn’t prepared to make decisions with such serious consequences on either personal issues or professional duties.  I felt that it was in the best interest of my family to stay behind and this is the biggest regret that I have to this day.  I made report to the Navel Air Station at Norfolk, Virginia and hoped I would be able to continue my service and still be able to receive assistance for my family.  Instead, I was discharged with an RE-4 Reenlistment Code.  Because of this discharge status, I cannot be recognized as a Veteran of the United States Navy and therefore, I am making this appeal to you at this time.  

Since the time of discharge, I have made several personal accomplishments in both my education and personal service to my community that I feel are significant and would like you to consider.

In 1990, following my discharge, I began serving as a volunteer for an Ambulance service in Cherokee County, Kansas. Initially I began as a driver with only CPR training, and during the next ten years I progressed to EMT certified status, Basic Life Support Instructor, EMT Intermediate, Kansas State Certified Training Officer for Emergency Medical Technician, as well as the Service Training Officer for all personnel.  I was certified in defensive driving by the Kansas Highway Patrol and also became certified in Water Rescue. I taught free CPR courses to day care providers in Cherokee County, Kansas and was also part of the Ground Safety Crew for MedFlight Helicopter Rescue Service in Joplin, Missouri.

Since moving to Minnesota in 2000, I have completed and been certified as a Nationally Registered Emergency Medical Technician.  However, due to my injuries, I am not able to continue practicing in the field.  I will include my medical documents for review upon request.

Due to the accomplishments that I have made both before and after discharge, I would like to appeal the discharge RE-Reenlistment Code and ask for an upgrade to a status that you feel is appropriate.  Please consider that outside of this one particular incidence, the rest of my service was honorable.

Thank you for your time in reviewing my appeal.”

Additional issues submitted by Applicant’s counsel (AMERICAN LEGION):

“In accordance with Title 32, CFR, Section 724.116 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the following statement in supplement to this Applicant’s petition.

Review of the available records reflect that this former member maintained satisfactory performance and conduct markings with 3.5 OTA.  He had civil charges on 870819 for canceling a weapon and 871222 for capias for failure to appear.  He was awarded NJP on 890921 for VUCMJ, Articles 86, 87.  Following due process notifications, he was discharged Under Other Than Honorable Conditions due to misconduct as authorized by NAVMILPERSMAN, Article 3630620.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because youth, immaturity and martial problems contributed to and mitigated his misconduct of record and because of his post service accomplishments. He has submitted 17 pages of additional documentation attesting to his Emergency Medical Technician training and certifications for consideration.

Following our careful review of the evidentiary record, we opine that the issues raised on the DD Form 293 attachment amply advance this former member’s contentions and substantially reflect the probative facts needed for equitable review.  Accordingly, we rest this case on the evidence of record.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by Title 10, USC, Section 1553 and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

Missouri Dept of Health EMT examination passing Letter dated April 29, 1997
Individual Test Result Data
Kansas Board of Emergency Medical Service Certificate (EMT) 1995
Kansas Board of Emergency Medical Service Training Officer and EMT ID cards
Kansas Board of Emergency Medical Service, successful Certification of Renewal dated 1999
Letter/Certificate Kansas Board of Review of Emergency Medical Services; Training Officer, 1997 (2 pages)
Cherokee County Ambulance Association, Inc; Letter of Support to become a training Officer for ambulance service, 1997
Certificate: Barton Community College Training Officer I Workshop, 1997
American Heart Association: Missouri Affiliate, Basic Life Support (BLS) Instructor Card, 1997-99
Certificate: Kansas Division of Emergency Management Certificate of Training for Hazardous Materials Recognizing and Identifying Awareness Level GHMF233; 1995
Certificate: Kansas Division of Emergency Management Certificate of Training for Hazardous Materials Recognizing and Identifying Awareness Level GHMF233; 1994
Kansas Department of Emergency Medical Services letter stating completion for certification of EMS, 1994-95
Kansas Board of Review of Emergency Medical Services copy of cards AED and EMT National Safety Council Defensive Driving Course completion Card, 1994-95
Cherokee County Ambulance Association Letter explaining completion of course of instructions of setup and operation of semi-automatic external defibrillator, 1994
Certificate: Kansas Division of Emergency Preparedness Certificate of Training Refresher of for Hazardous Materials Recognizing and Identifying Awareness Level GHMF233.3, 1993
Barton Community College EMT Medical Instructor Coordinator Transcript
Minnesota Emergency Medical Services Regulatory Board EMT Card and National Registry of Emergency Medical Technicians certification card 
DD Form 214     

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	860909 - 870204	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  870205			Date of Discharge:  900227

Length of Service (years, months, days):

	Active:    02  11  24  (Does not include lost time)
	Inactive:  None

Age at Entry:  17 (parental consent)		Years Contracted:  4 (24 month extension)

Education Level:  12				AFQT:  75

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.46 (3)			Behavior:  3.53 (3)		OTA:  3.46

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  29

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:

871210:	Civil Conviction:  [General District Court Criminal Division Virginia Beach, Virginia] for concealed weapon.
Sentence:  $250.00 fine plus court cost. Confiscate weapon (switchblade).

880128:	Civil Conviction:  [General District Court Criminal Division Virginia Beach, Virginia] for Capias for failure to appear.
Sentence:  $25.00 fine plus court cost.

890511:	Applicant commenced a period of unauthorized absence this date.

890609:	Applicant surrendered from unauthorized absence this date (29 dates).

890613:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 890610 having been an unauthorized absentee since 0600, 890511 from USS AMERICA (CV-66).

890704:	Report of Return of Deserter.  Applicant surrendered to PSD Norfolk, VA at 1323, 890609. Returned to military control 890609 (1323). 

890921:	NJP for violation of UCMJ, Article 86:  On or about 890511, without authority, absent himself from his unit, to wit: USS AMERICA (CV-66), and did remain so absent until 890609 (29days/S), violation of UCMJ Article 87: On or about 890511, through design, miss the movement of the USS AMERICA (CV-66), with which he was required in the course of duty to move.
	Award:  Forfeiture of ½ months pay per month for 2 months (suspended for six months), restriction to NAS Norfolk, VA and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

891002:	Applicant notified of intended recommendation for discharge by reason of misconduct due to the commission of a serious offense as evidenced by one instance of non-judicial punishment for unauthorized absence and missing ship’s movement.  Applicant notified that if separation is approved, the least favorable characterization of service possible is under other than honorable conditions.

891002:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

891024:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by one instance of non-judicial punishment for unauthorized absence and missing ship’s movement. 

891109:	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 19900227 under other than honorable conditions for misconduct due to commission of a serious offense (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issue 1.  Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by civilian convictions for a concealed weapon, and failure to appear and the military offenses of missing ship’s movement and unauthorized absence.  This misconduct resulted in nonjudicial punishment proceedings for violations of UCMJ Articles 86, and 87.  Under applicable regulations, a violation of UCMJ Article 87 is considered a serious offense.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends his disciplinary problems were the result of stress caused by his troubled marriage.  The NDRB recognizes that serving in the U.S. Navy is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that many members of the Navy endure hardships similar to those of the Applicant.  It must further be noted that the vast majority of those members do not commit misconduct as a result of their problems.  Despite their hardships, these sailors are still able to serve honorably and therefore earn their honorable discharges.  In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  The NDRB found that the Applicant's service was equitably characterized.  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 Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that could be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  The Board received and considered all of the Applicant’s submissions, including his certificates, transcripts, and records of community service involving emergency medical services.  However, the Board concluded that the Applicant’s post-service conduct has been insufficient to mitigate his misconduct while in the Naval service.  Relief denied.

The following if provided for the edification of the Applicant.  The NDRB has no authority to provided additional review of this case since Applicant’s discharge occurred more than 15 years ago.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A), Change 8, effective 
21 Aug 89 until 14 Aug 91, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 87, missing ship’s movement, if adjudged at a Special or General Court-Martial.

C.  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.

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

E.  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.