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NAVY | DRB | 1999_Navy | ND99-01087
Original file (ND99-01087.rtf) Auto-classification: Denied


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

ex-ASAA, USN
Docket No. ND99-01087

Applicant’s Request
The application for discharge review, received 990810, requested that the characterization of service on the discharge be changed to Honorable or General/under Honorable conditions. 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 000427. 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. Discharged in absentia.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. I successfully completed 4 yrs. I signed an 18 month extension on the agreement that they would transfer my command. When they failed to uphold what they said, I lost interest I was in deserter status and went back. After this I went awal and was discharged in absence. My first 4 years was great with a good record and several commendations. The U.S.S. Midway hated to see me leave. Oceana Va., just was not the place for me. My work record was excellent. After I was told I could not be transferred I just gave up.
I'm hoping at least my first 4 years will warrant an upgrade of my discharge and entitle me to a few V.A. Benefits.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     861205 - 861211  COG

 Period of Service Under Review :
Date of Enlistment: 861212               Date of Discharge: 910802

 Length of Service (years, months, days):

         Active: 04 07 22
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4 (18 months extension)

 Education Level: 12                        AFQT: 51

 Highest Rate: AS3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.56 (5)    Behavior: 3.48 (5)                OTA : 3.64

 Military Decorations: None

 Unit/Campaign/Service Awards: AFEM, SSDR, MUC, NDSM

 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. Discharged in absentia.

 Chronological Listing of Significant Service Events :

881006:  NJP for violation of UCMJ, Article 91 (2 specs: Disobeying a lawful order and disrespectful in language, violation of UCMJ Article 128: Assault on another service member, violation of UCMJ Article 134: Drunk and disorderly.
         Award: Forfeiture of $393 per month for 1 month, restriction and extra duty for 30 days, reduction to ASMAA. Reduction suspended for 6 months. No indication of appeal in the record.
881006:  Retention Warning: Advised of deficiency (Disciplinary infractions and pattern of misconduct), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
881216:  Reduction to ASMAN awarded at CO's NJP on 16OCT88 has been suspended for 6 months from date of NJP.

900322:  Civil Conviction: US District Court, Norfolk, VA for violation of driving under the influence of alcohol.
 Sentence: One year probation, driving privileges suspended for 6 months, fine $250.00. Conditions of probation - prohibited from operating a motor vehicle on public highway for 6 months, pay fine within first four months of probation, and participate in an alcohol education and treatment program.
900810:  Applicant declared a deserter. Unauthorized absence since 0700, 9JUL90.

900814:  Applicant returned from deserter status, 1030, 14AUG90 (36 days/surrendered).

901105:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence from 9Jul90 to 14AUG90 (36 days).
         Findings: to Charge I and specification thereunder, guilty.
         Sentence: Fine of $250.00, restriction for 50 months.
         CA 901203: Sentence approved and ordered executed.

901216:  Applicant extended enlistment for 18 months.

910403:  Civil Conviction: US District Court, Norfolk, VA for violation of probation on 22MAY90.
 Sentence: Imprisonment for 7 days.
910417:  NJP for violation of UCMJ, Article 86 (2 specs): Unauthorized absence from watch from 2230 on 15MAR91 to 0005, 16MAR91 and unauthorized absence from 0015, 16MAR91 to 0520, 16MAR91.
         Award: Reduction to ASMAN. No indication of appeal in the record.
910429:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to a Pattern of misconduct, misconduct due to the Commission of a serious offense, and misconduct due to civilian conviction.
910429:          Applicant advised of his rights and having consulted with counsel certified under UCMJ, Article 27B, elected to appear before an Administrative Discharge Board.
910502:  Drug/alcohol screening: Not dependent on alcohol at this time.

910506:  Applicant to unauthorized absence 0700, 6MAY91.

 910507:  Applicant from unauthorized absence 0700, 7MAY91 (1 day/surrendered).

910515:  Applicant to unauthorized absence 1345, 15MAY91. IHCA 1346, 15MAY91 (15 days).

910530:  Applicant from unauthorized absence 1530, 30MAY91.
910611:  NJP for violation of UCMJ, Article 86 (3 specs): Unauthorized absence from 0700 to 0750 18APR91, unauthorized absence 0700, 6MAY91 to 0700, 7MAY91, and unauthorized absence from 1345 to 1630, 30MAY91, violation of UCMJ Article 92: Wrongfully drinking in a restricted status, violation of UCMJ Article 134: Break restriction.
         Award: Forfeiture of $422 per month for 2 months, restriction and extra duty for 45 days, reduction to ASMAA. No indication of appeal in the record.
910612:  Applicant waived request for an administrative discharge board.

 910703:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to a Pattern of misconduct, misconduct due to the Commission of a serious offense and misconduct due to civilian conviction.

910725:  BUPERS directed the applicant's discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense. Discharged in absentia.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 910802 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 he successfully completed the first 4 years of his enlistment and because he was not transferred to a different command, after he extended his enlistment for 18 months, he lost interest and deserted. The characterization of the applicant’s discharge is based on his entire enlistment and not just the first four years. Desertion is a violation of the UCMJ and a court-martial offense. The discharge was proper and equitable. Relief denied.

The following is provided for the benefit of the applicant. 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 provide any documentation to demonstrate 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 . The applicant 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.

 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 86, unauthorized absence for a period in excess of 30 days; Article 128, assault on another service member, 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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