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NAVY | DRB | 1999_Navy | ND99-00082
Original file (ND99-00082.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND99-00082

Applicant’s Request
The application for discharge review, received 981014, 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 feel that I have paid for my mistake and have really matured since that time. I have had a clean record to date and maintained steady employment. Therefore, I feel that my discharge should be upgraded.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Reference letters (3)
Letter from applicant

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     870623 - 870803  COG

 Period of Service Under Review :
Date of Enlistment: 870804               Date of Discharge: 890330

 Length of Service (years, months, days):

         Active: 01 07 26
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 10                        AFQT: 56

 Highest Rate: OSSA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NOB                  Behavior: 1.00 (1)                OTA : 1.00

 Military Decorations: None

 Unit/Campaign/Service Awards: NFIR

 Days of Unauthorized Absence: 52

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 :

881008:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 881006 having been an unauthorized absentee since 0730, 880905 from USS IOWA (BB-61).

881031:  Report of Return of Deserter. Applicant surrendered to military authority on 0800, 881027 at NRC, ASHVILLE NC. Returned to military control 881027, 0800. Retained onboard pending disposition instruction from parent command.

890119:  SPCM for violation of UCMJ, Article 86: UA from 880905-881027 (52days/S), violation of UCMJ, Article 86 (5 specs): UA from appointed place of duty, to wit: Restricted Men's Muster.
         Sentenced to CHL for 55 days, forfeiture of $150 pay per month for 2 months, reduction to E-1.
         CA (NFIR)
        
890213:  NJP for violation of UCMJ, Article 86 (2 specs): UA from appointed place of duty, violation of UCMJ Article 91: Disobeyed a lawful order from petty officer, violation of UCMJ Article 91: Disrespectful in language toward a petty officer.
         Award: Confinement for 3 days on bread and water, forfeiture of $349 per month for 2 months. No indication of appeal in the record.
890216:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of Misconduct due to the Commission of a Serious Offense.
890221:          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.
890301:  Commanding officer recommended discharge under oOher Than Honorable conditions by reason of Misconduct due to the Commission of a Serious Offense.

890315:  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 890330 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 the applicant’s issue 1, the Board found this issue to be without merit. There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life, subsequent to leaving military service. The NDRB reviews the propriety (did the Navy follow its own rules in processing the applicant for discharge) and equity (did the applicant receive a discharge characterization in keeping with Navy guidance and was the characterization typical of other service members being separated for the same reason) of each applicant’s discharge. Additionally, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge (what has the applicant done since discharge to become a contributing member of his/her community and to society in general). Those factors include but are not limited to the following: Evidence of continuing educational pursuits (transcripts, diploma, degree or vocational-technical certificates), a verifiable employment history (letter of recommendation from employer), documentation of community service (letter from activity/community group), certificate of non-involvement with civil authorities (police records check) and proof of not using drugs (detoxification certificate). At this time the applicant has not provided any documentation of good character and conduct but is encouraged to continue his pursuits. The applicant is reminded that he is eligible for a personal appearance hearing, provided the application is received within 15 years from the date of discharge. Legal representation at personal appearance hearings is highly recommended. Relief denied.

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A), Change 6, effective
11 Jan 89 until 24 May 89, 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 86: Unauthorized absence for a period in excess of 30 days, Article 91 Disobeying a lawful order from a Petty Officer, Article 91: Disrespectful in language toward a Petty Officer, 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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