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NAVY | DRB | 1999_Navy | ND99-00041
Original file (ND99-00041.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND99-00041

Applicant’s Request
The application for discharge review, received 981007, requested that the characterization of service on the discharge be changed to honorable. 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 990927. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. 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 (verbatim)

1. I've been going through some bad, depressing times and was seeking help through the V.A. hospital. I was told that they couldn't help me until my discharge was upgraded from an OTH to an honorable one. I've attached a letter that I hope will help you understand why I need counseling. (No letter from applicant found in case folder.)

I have no DD 214 so I attached a letter stating my time of entry and discharge into the Navy.


 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from applicant's mother
Letter from Department of Veterans Affairs to applicant dated September 14, 1998
Copy of DD Form 214.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: None

 Period of Service Under Review :
Date of Enlistment: 841218               Date of Discharge: 860129

 Length of Service (years, months, days):

         Active: 01 01 12
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

 Education Level: 12                        AFQT: 28

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                  Behavior: NMF             OTA : NMF but a statement on marks page indicated no marks were below 3.0.

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: 35

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 :

850711:  NJP for violation of UCMJ, Article 134: Provided alcohol to minors on 1 July 1985, violation of UCMJ Article 86: Unauthorized absence on 6 July 1985, violation of UCMJ Article 92 (2 specs): Failed to go to duty, and violated lawful order by not showing up at appointed place of duty on 6 July 1985.
         Award: Forfeiture of $348 per month for 1 month, extra duty for 14 days, reduction to E-1. Reductions suspended. No indication of appeal in the record.
850718:  Retention Warning: Advised of deficiency (Unauthorized absence and giving alcoholic beverages to persons under 21 years of age.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
851112:  Applicant declared a deserter. UA since 0800, 851010.

851211:  Vacated suspended reduction awarded at NJP dated 85Jul11 due to continued misconduct.

851211:  NJP for violation of UCMJ, Article 86: Absent from unit 0700, 85Oct10 until 0900, 85Nov14 (35 days/surrendered).
         Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
851218:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
851218:          Applicant advised of her 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.
851220:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

860105:  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 860129 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).
In response to applicant’s issue 1, t he Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

The following is provided for the applicant’s edification. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E). The applicant must be aware that 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. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. 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, may be considered by the NDRB. The applicant is reminded that she is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is highly recommended.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560, Change 10/85, effective
16 Dec 85 until 05 Oct 86), Article 3630600, SEPARATION OF ENLISTED MEMBERS 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 86, for unauthorized absence for a period in excess of 30 days, if adjudged at a Special or General Court-Martial.
C. 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.

D. 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.

E. 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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809

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
                  Washington Navy Yard
                  720 Kennon Street SE Rm 309
                  Washington, D.C. 20374-5023     

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