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NAVY | DRB | 2000_Navy | ND00-00177
Original file (ND00-00177.rtf) Auto-classification: Denied


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

ex-ENFR, USN
Docket No. ND00-00177

Applicant’s Request
The application for discharge review, received 991117, 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 Veterans of Foreign Wars as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000803. 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.

The NDRB did note an administrative error on the original DD Form 214. Block 25, Separation Authority should read: “NAVMILPERSMAN, Article 3630600” vice “MILPERSMAN 3630620”. The original DD Form 214 should be corrected or reissued as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. I would like to upgrade my discharge on the basis that I was an above average sailor it started with school where I was education petty officer (help teach class) I went to the fleet and served in Desert Storm/Shield for 8 mo & 2 days while in Desert Storm I made E-4 in under 2 years I volunteered for extra duty which included explosive fork lift driver and assembling bombs on hangar deck. I was ships countermeasure boat engineer while anchored off shore looking for mines. I received a letter of commendation.

2. For doing so, basically I feel I was a good sailor while I was in. I worked hard and was proud to serve and still am. This black cloud on my record was caused by immaturity and lack of communication. I have been a model citizen after discharge. I would like to be able to show my son an honorable discharge, just like the one that my father showed me at his age.

3. I received awards and decorations I was in combat my ability to serve was impaired by family health care problems.

4. IAW SECNAV Instruction 5420.174C of 22 August 1984 (MDR 1984), enclosure (1), chapter 9, paragraph 9.3, Equity of Discharge, we ask the Board to consider the following factors:

•         Prior to the incident that led to discharge, the applicant had proven himself to be a good sailor. Reference Honor Graduate Certificate from Recruit Training Command and Letter of Commendation for superior performance in support of Operations Desert Shield and Desert Storm.
•         The applicant's mother was hospitalized and underwent life threatening triple bypass surgery. This extreme mitigating circumstance surrounded the applicant's reasoning during the incident that led to discharge.
•         Reference American Cross message which stated that the applicant's "presence is recommended."
•         Finally, we ask the Board to consider the applicant's outstanding post service factors that are evidenced by his solid employment history and educational pursuits. Reference employer's letter and college transcripts. Also of note is the absence of any criminal records.
5. We ask the Board to consider the applicant's case IAW SECNAV Instruction 5420.174C of 22 August 1984 (MDR 1984), enclosure (1) chapter 9, paragraph 9.2, Propriety of Discharge.

The Veterans of Foreign Wars of the United States express purpose in providing this statement, and any other submittals or opinions of record, is to aid the applicant in resolving any improprieties or inequities in the character and basis for discharge. After reviewing all available evidence, we ask the Board to resolve any doubt in favor of the applicant and to grant the action requested as entitled under Title 10 U.S.C., Section 1553.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 (2 copies)
Copy of message from ARC to USS NASSAU dated 26 August 1991 (2 copies)
Copy of procedures for requesting a Humanitarian Transfer or Hardship Discharge
Statement from applicant dated December 14, 1999
Character/job reference from service manager at Sam Leman Inc
Certificate from National Institute for Automotive Service Excellence dated December 31, 1998
Copy of courses dated November 16, 1999
Police record check from Tazewell County Sheriff's Office
Copy of Letter of Commendation
Copy of Honor Graduate Certificate

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     891004 - 891126  COG

 Period of Service Under Review :
Date of Enlistment: 891004               Date of Discharge: 911108

 Length of Service (years, months, days):

         Active: 01 11 12
         Inactive: 00 01 22

 Age at Entry: 19                          Years Contracted: 8

 Education Level: 11 GED           AFQT: 64

 Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.40 (1)    Behavior: 3.00 (1)                OTA : 3.40

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM with 2 Bronze Stars, NUC, SSDR

 Days of Unauthorized Absence: 71

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 :

891127:  Applicant ordered to active duty for 36 months in the Active Mariner Program.

900803:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0700, 20 July 1990 to 0600, 30 July 1990 (9 days/surrendered).
         Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 10 days. No indication of appeal in the record.
900803:  Retention Warning: Advised of deficiency (Unauthorized absence from 20 to 30 July 1990.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
910830:  Applicant declared a deserted. Unauthorized absence since 0630, 25Jul91.
910922:  Applicant surrendered 0630, 22Sep91.

 911009:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86.
         Specification 1: Unauthorized absence from 0630, 26Jul91 to 1930, 22Sep91 (58 days).
         Specification 2: Go from appointed place of duty on 2Oct91.
         Specification 3: Unauthorized absence from unit 3Oct91 to 7Oct91 (4 days).
         Charge II: violation of the UCMJ, Article 90.
         Specification: Disobey a lawful order from a commissioned officer on 8Oct91.
         Finding: to Charge I and II and the specification thereunder, guilty.
         Sentence: Forfeiture of $497.00, CHL for 30 days, reduced to ENFR.
         CA action 911009: Sentence approved and ordered executed.

911009:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. [Extracted from CO's message dated 16Oct91.]
911009:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights. [Extracted from CO's message dated 16Oct91.]
911016:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

911025:  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 911108 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).

 The applicant’s firs issue states: “I would like to upgrade my discharge on the basis that I was an above average sailor it started with school where I was education petty officer (help teach class) I went to the fleet and served in Desert Storm/Shield for 8 mo & 2 days while in Desert Storm I made E-4 in under 2 years I volunteered for extra duty which included explosive fork lift driver and assembling bombs on hangar deck. I was ships countermeasure boat engineer while anchored off shore looking for mines. I received a letter of commendation.” The NDRB found that the applicant’s misconduct included an NJP and a Summary Court Martial in his one year eleven months of active service. His violation of Article 86 (58 days) and Article 90 are considered serious offenses and warrant a punitive discharge at court martial. Considering the applicant’s service record and his significant misconduct, the NDRB found the applicant’s discharge proper and equitable. Relief is not warranted.

 2. The applicant’s second issue states: “For doing so, basically I feel I was a good sailor while I was in. I worked hard and was proud to serve and still am. This black cloud on my record was caused by immaturity and lack of communication. I have been a model citizen after discharge. I would like to be able to show my son an honorable discharge, just like the one that my father showed me at his age.” The NDRB found this issue to be non decisional. The following is provided for the applicant’s edification. The NDRB is authorized to consider post-service factors in the re characterization of a discharge. The applicant must be aware that there is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB. 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. Representation at personal appearance hearing is highly recommended.


3. The applicant’s third issue states: “I received awards and decorations I was in combat my ability to serve was impaired by family health care problems.” The NDRB found the positive aspects of the applicant’s service were outweighed by his significant misconduct while on active duty. While the applicant has provided documentation regarding his family health care problems, there is no documentation demonstrating his proper use of administrative measures in order to obtain relief, ie requests for leave, permissive TAD, or humanitarian discharge request. Relief is not warranted.

4. The applicant’s fourth issue states: “AW SECNAV Instruction 5420.174C of 22 August 1984 (MDR 1984), enclosure (1), chapter 9, paragraph 9.3, Equity of Discharge, we ask the Board to consider the following factors:

•         Prior to the incident that led to discharge, the applicant had proven himself to be a good sailor. Reference Honor Graduate Certificate from Recruit Training Command and Letter of Commendation for superior performance in support of Operations Desert Shield and Desert Storm.
•         The applicant's mother was hospitalized and underwent life threatening triple bypass surgery. This extreme mitigating circumstance surrounded the applicant's reasoning during the incident that led to discharge.
•         Reference American Cross message which stated that the applicant's "presence is recommended."
•         Finally, we ask the Board to consider the applicant's outstanding post service factors that are evidenced by his solid employment history and educational pursuits. Reference employer's letter and college transcripts. Also of note is the absence of any criminal records.”
The NDRB found the significant aspects of the applicant’s misconduct outweigh his otherwise credible service. The NDRB reviewed the applicant’s documentation regarding his family health problems and found that while they are significant, without documentation of requests for transfer, permissive TAD, or emergency leave, relief is not warranted. Finally, the following is provided for the applicant’s edification. The NDRB is authorized to consider post-service factors in the re characterization of a discharge. The applicant must be aware that there is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service. As stated in issue 2, the applicant is eligible for a personal appearance hearing. Documentation of post service accomplishments is highly recommended.

5. The applicant’s fifth issue states: “We ask the Board to consider the applicant's case IAW SECNAV Instruction 5420.174C of 22 August 1984 (MDR 1984), enclosure (1) chapter 9, paragraph 9.2, Propriety of Discharge.” The NDRB found no procedural errors in the applicant’s discharge. Relief is not warranted.


Pertinent Regulation/Law (at time of discharge)

A. Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until
04 Mar 93, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B. 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.

C. 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.

D. 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 view DoD Directive 1332.28 and other Decisional Documents by going online at " afls14.jag.af.mil ".

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
                  720 Kennon Street SE RM 309
                  Washington Navy Yard DC 20374-5023      


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