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NAVY | DRB | 1999_Navy | ND99-00733
Original file (ND99-00733.rtf) Auto-classification: Denied


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

ex-FR, USN
Docket No. ND99-00733

Applicant’s Request
The application for discharge review, received 990505, requested that the characterization of service on the discharge be changed to Honorable. The applicant requested a documentary record discharge review. The applicant listed the American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000207. 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. My discharge was inequitable because it was based on three isolated incidents in 24 months of service with no other adverse action.

2. (EQUITY ISSUE) This former member further requests that the Board include provisions of SECNAVINST 5420.17C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214.
 American Legion statement dated 1 July 1999

PART II - SUMMARY OF SERVICE

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

 Period of Service Under Review :
Date of Enlistment: 910329               Date of Discharge: 930609

 Length of Service (years, months, days):

         Active: 02 00 27
         Inactive: None

 Age at Entry: 19                          Years Contracted: 8

 Education Level: 12                        AFQT: 39

 Highest Rate: FR

 Final Enlisted Performance Evaluation Averages (number of marks):

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

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 290

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 :

910514:  Entered active duty 910514.

920128:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
         Award: Forfeiture of $200 per month for 1 month and restriction for 30 days. No indication of appeal in the record.
920501:  NJP for violation of UCMJ, Article 86 (2 Specs): Unauthorized absence (total 6 days absence).
         Award: Forfeiture of $393 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
920628:  Applicant declared a deserter 920628, having been on unauthorized leave since 1600, 920528, from Commanding Officer, NAVHOSP CHERRY Point, NC.

930323:  Applicant returned from deserter status. Surrendered to military control at 1200, 93MAR22 at NAVSPPACT New Orleans, LA security office.

930428:  NJP for violation of UCMJ, Article 86: Absent from unit, failure to report to place of duty, in that FR (applicant) did, on or about 05JUN92, without authority, absent himself from his place of duty at which he was required to be, to wit: flight to USS SAGINAW (LST 1188), and did remain so absent until on or about 22MAR93..
         Award: Forfeiture of $400 per month for 2 months and restriction and extra duty for 45 days. No indication of appeal in the record.

930511:  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 his deserter status from 5 June 1992, off of the USS SAGINAW (LST 1188). To 22 March 1993.
930511:          Applicant advised of his rights and having consulted 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.
930511:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a Serious Offense, as evidenced by deserter status from 5 June 1992, off of the USS SAGINAW (LST 1188), to 22 March 1993.

930519:  BUPERS directed the applicant's discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a Serious Offense.

930524:  NAVHOP Cherry Point advised applicant’s discharge being held in abeyance pending further medical evaluation at NNMC Bethesda.

930601:  BUPERS directs applicant shall not be retained on active duty for further medical treatment after discharge authorization, regardless of separation physical determination that the member is unfit for discharge. The medical examiner shall note physical defects on SF 88 and SF 93 and command shall separate member without further medical action of findings.

930609:  Applicant officially discharged 930609 under Other Than Honorable conditions for misconduct, Commission of a Serious Offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 930609 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 determined this issue is without merit. The applicant claims his discharge was inequitable because it was based on three isolated incidents in 24 months of service with no other adverse actions. One of the isolated incidents the applicant mentions was desertion for 290 consecutive days, which was a court martial offense. Relief denied.

In the applicant’s issue 2, the Board determined this issue is 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, 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 or was the characterization typical of other service members being separated for the same reason) of each applicant’s discharge to determine if proper procedures were followed. This applicant’s discharge was proper and equitable . Additionally, the NDRB is authorized to award clemency for post-service factors (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). The applicant did not provided any documentation of good character or conduct, which would warrant an upgrade to his discharge. The applicant is encouraged to establish a reputation of good character and document his accomplishments. Documentation to support any claim of good character is a must to receive any consideration based on post-service achievements . He remains eligible for a personal appearance hearing, to discuss his post-service accomplishments, provided an application is received by the NDRB within fifteen years from the date of his discharge. Legal representation at the hearing is advisable. Relief denied.

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective
05 Mar 93 until 21 Jul 94, 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, 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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