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NAVY | DRB | 1999_Navy | ND99-00589
Original file (ND99-00589.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND99-00589

Applicant’s Request
The application for discharge review, received 990325, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a documentary record discharge review. The applicant listed a civilian counsel as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000104. 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 3630605.







PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.       After graduating High School I needed something to do I didn’t have no scholarship. My parents were on my back about a job, so the military was one of the only options left not legally old enough to sign myself in, mother did. When it came time for to decide It’s not what I wanted. My parents forced me in. Also the recruiter mislead with false information.
2.       With an upgrade it will allow me to get more and job oppurtunities.
3.       The discharge that I have makes me out to be some type of criminal, for not wanting to be in the military. With this type of discharge makes it harder to get a job.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214.
Two letters from the Office of Congressman Chaka Fattah

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        000000 - 000000  HON
         Inactive: USNR (DEP)     000000 - 000000  COG

 Period of Service Under Review :
Date of Enlistment: 961003               Date of Discharge: 970620

 Length of Service (years, months, days):

         Active: 00 08 18
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 37

 Highest Rate: SR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: N/A                  Behavior: N/A             OTA : N/A

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 77

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 3630605.

 Chronological Listing of Significant Service Events :

970121:  Applicant away on unauthorized absence.

 970220:  Applicant declared deserter having been an unauthorized absentee since 0500 hours, 21 Jan 97 from USS Guam.
970408:  Applicant surrendered onboard PSD, Willow Grove, PA.

970411:  Summary Court-Martial.
 Charge I: violation of the UCMJ, Article 86.
Specification: Unauthorized absence from 21 January 1997 – 8 April 1997.
Charge II: violation of the UCMJ, Article 87.
Specification: Missing ship’s movement on 21 January 1997.
         Award: Forfeiture of $600 per month for 1 month, and confinement for 30 days. No indication of appeal in the record.
970411:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
970411:          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.

970422:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. Commanding officer’s comments (verbatim): Seaman Recruit______ misconduct warrants separation. He has no potential for further military service. He lacks motivation and initiative to be a productive member of the naval service. He has demonstrated by his actions that he cannot be relied upon to complete any work assignments. I strongly recommend that Seaman Recruit_____ be separated immediately from the Naval Service under Other Than Honorable conditions by reason of misconduct due to commission of a serious offense.

970425:  Commander, Amphibious Group TWO 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 970620 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 issues 1-3, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency. The applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded. The applicant is reminded that he remains eligible for a personal appearance hearing provided that an application is received within 15 years from the date of discharge .

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective
03 Oct 96 until 971212, Article 3630605, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B. In Appendix 12 of 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 and 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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