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NAVY | DRB | 1999_Navy | ND99-01161
Original file (ND99-01161.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND99-01161

Applicant’s Request
The application for discharge review, received 990830, requested that the characterization of service on the discharge be changed to Honorable. The applicant requested a personal appearance hearing before the board in the Washington National Capital Region. The applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000522. 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, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. I am asking for an upgrade in my discharge because I have made a lot of mistakes. I was young and made a lot of wrong decisions. My main problem was getting married at such and young age (18).

2. Once this happened I let this woman ruin my career. She was always fighting and getting me involved case I was her husband. Which I had no choice I had to protect her. Now that life has gone by and I mature I realize the decisions I've made were all wrong. While I was out I graduate from a medical school and have four boys I love dearly. They look up to me and I don't want them looking at their father as a bad guy who couldn't serve his country.

3. I currently in college and I'm trying to straighten my life for myself and for them. So I asking for another opportunity to show that I can be a better sailor. Life has changed completely. I relize my mistake & can do better.


 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     910524 - 910916  COG

 Period of Service Under Review :
Date of Enlistment: 910917               Date of Discharge: 940422

 Length of Service (years, months, days):

         Active: 02 07 06
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 34

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.53 (3)    Behavior: 2.53 (3)                OTA: 3.13

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

Days of Unauthorized Absence: 101

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600. Discharged in absentia.

 Chronological Listing of Significant Service Events :

910918:  You are being retained in the Naval service, despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your preservice civil involvement: Assault, 1989 Paid $40 fine and awarded 6 months probation. However, any further deficiencies in performance or conduct may result in processing for administrative separation.

920213:  Applicant to unauthorized absence 0500, 13Feb92.

920216:  Applicant from unauthorized absence 0800, 16Feb92 (3 days/surrendered).

920319:  Applicant to unauthorized absence 0730-0800, 19Mar92 (30 minutes).

920403:  Applicant to unauthorized absence 0500-0730, 3Apr92 (2 hours and 30 minutes).

920412:  Applicant to unauthorized absence 0700-0845, 12Apr92 (1 hour and 45 minutes).

920513:  Applicant to unauthorized absence 0700-0720, 13May92 (20 minutes).

920518:  Applicant to unauthorized absence 0700, 18May92.

920521:  Applicant from unauthorized absence 0730, 21May92 (3 days/surrendered).

921006:  Applicant to unauthorized absence 0715-0730, 6Oct92 (15 minutes).

921009:  Applicant to unauthorized absence 0715-0730, 9Oct92 (15 minutes).

921011:  Applicant to unauthorized absence 0715, 11Oct92.

921012:  Applicant from unauthorized absence 0715, 12Oct92 (1 day).

921102:  Applicant to unauthorized absence 0630-1350, 2Nov92 (6 hours and 20 minutes).

921104:  NJP for violation of UCMJ, Article 86 (2 specs): (1) Unauthorized absence from place of duty on 17Oct92, (2) Unauthorized absence from 11-12Oct92, violation of UCMJ Article 91 (2 specs): (1) Willful disobedience of PO3 on 20Oct92, (2) Disrespect to PO3 on 20Oct92.
         Award: Forfeiture of $200 per month for 2 months, extra duty for 30 days. No indication of appeal in the record.
921109:  Applicant to unauthorized absence 0615-0645, 9Nov92 (30 minutes).

930107:  Applicant to unauthorized absence 0715, 7Jan93.

930108:  Applicant from unauthorized absence 0715, 8Jan93 (1 day).

930110:  Applicant to unauthorized absence 0715, 10Jan93.

 930111:  Applicant from unauthorized absence 0550, 11Jan93 (22 hours and 35 minutes).

 930215:  Applicant to unauthorized absence 0715, 15Feb93.

930216:  Applicant from unauthorized absence 0715, 16Feb93 (1 day).

930517:  Applicant to unauthorized absence 0715-0807, 17May93 (52 minutes).

930524:  Applicant to unauthorized absence 0715, 24May93.

 930524:  Civil Conviction: Juvenile and Domestic Relations Court, Norfolk, VA for violation of simple assault State statute violated: 18.2-57.2SC.
 Sentence: Jail for 30 days. Suspended on condition of completion of Navy domestic violence program and good behavior toward wife for six months.
930525:  Applicant from unauthorized absence 0715, 25May93 (1 day).

930610:  Applicant to unauthorized absence 0715, 10Jun93.

930614:  Applicant from unauthorized absence 0715, 14Jun93 (4 days/surrendered).

930726:  Applicant to unauthorized absence 0715, 26Jul93.

930727:  Applicant from unauthorized absence 0715, 27Jul93 (1 day).

930810:  Applicant to unauthorized absence 0715-0725, 10Aug93 (10 minutes).

930820:  Civil Conviction: General District Court Criminal Division, Norfolk, VA for violation of assault and battery.
 Sentence: $1000.00 peace bond. No contact with complainant.
930824:  Applicant to unauthorized absence 0715, 24Aug93.

930826:  Applicant from unauthorized absence 0615, 26Aug93 (1 day/surrendered).

930929:  NJP for violation of UCMJ, Article 86 (4 specs): Unauthorized absence 24-26Aug93, failure to go to appointed place of duty on 14Sep93 and 19Sep93, Unauthorized absence from 1945-2309, 9Sep93, violation of UCMJ, Article 92: Disobey a lawful order by wearing civilian clothes to General District Court, violation of UCMJ, Article 134: Disorderly conduct on 9Sep93.
         Award: Forfeiture of $300.00 per month for 2 months, restriction and extra duty for 45 days, reduction to SA. Forfeiture suspended for 6 months. No indication of appeal in the record.
931201:  Applicant to unauthorized absence 0715, 1Dec93.

 931206:  Applicant apprehended by civil authorities and charge with 4 counts of failure to appear (5 days).
931217:  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 your service record and civilian conviction as evidenced by all civil convictions in your record.
940104:          Applicant advised of his rights and having consulted with counsel certified under UCMJ, Article 27B, elected to appear before an Administrative Discharge Board.
940110:  Applicant to unauthorized absence, 0715, 10Jan94. Declared a deserter. Unauthorized absence from USS EMORY S. LAND (AS 39) since 0715, 10Jan94.
940111:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed a serious offense, that the misconduct warranted separation, and recommended discharge under Other Than Honorable conditions.

940327:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense and misconduct due to Civil conviction. Commanding officer’s comments (verbatim): I concur in the findings and recommendations of the Administrative Discharge Board and recommend that SA (applicant) be separated as soon as possible with an Other Than Honorable Discharge. SA (applicant) has been an unauthorized absentee since 1 December 1993. However, he was represented at the administrative board by counsel. Approval to separate in absentia is requested.

940331:  Applicant apprehended by civil authorities at 2135, 31Mar94 (80 days/surrendered). Returned to military control 2155, 31Mar94.

940412:  BUPERS 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 940422 under Other Than Honorable conditions for misconduct due to commission of a serious offense (A). The Board presumed regularity in the conduct of governmental affairs (B). 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 (C and D).

In the applicant’s issues 1 and 2, the Board determined these issues are without merit. The applicant states he was young, made the wrong decisions, married young and now has four sons that look up to him. It is good the applicant is remorseful and wants to be a parent his sons can be proud of, but realizing he made bad choices in his life is not justification for his misconduct. 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.

In the applicant’s issue 3, the Board determined this issue is without merit. The applicant claims he is in college and wants another opportunity to show he can do better. The applicant did not provide any documentation to support his claim of continuing his education. As stated in the response to issues 1 and 2, all claims of post-service accomplishments must be supported by official, legal proof to be considered for post-service clemency. Having others attest or righting a statement himself that such accomplishments were made is unacceptable. The discharge was proper and equitable. 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: Unauthorized absence for a period in excess of 30 days and Article 91: Willfully disobeying a noncommissioned or 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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