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NAVY | DRB | 2000_Navy | ND00-00354
Original file (ND00-00354.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND00-00354

Applicant’s Request
The application for discharge review, received 000121, requested that the characterization of service on the discharge be changed to Honorable. 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 000824. 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. To whom it may concern:
I would like to have my discharge upgraded to an Honorable one. When I was told I needed to have surgery as an order, I left my command. I was on an airforce base with less than 100 Navy personnel, I was scared and not knowing what to do I ran off. I did return under my own and felt that being pregnant and working full time was not something I wanted to do. I had a court marshall and was granted separation. My JAG officer at the time told me to accept my discharge and some day in the future change the status.
I am writing this because I am 31 yrs old and would like to be able to show my son who wants to be a pilot that I did what was necesary at the time to accept the other than honorable discharge. I want it to be upgraded for if it was such a terrible thing that I did then why didn't I recieve a dishonorable discharge.
It has been a long time since those days and I am the mother of four beautiful children. If I had had the operation I was ordered to I would not have any children today. I hope that you can understand this request and upgrade my discharge to Honorable. Thank you

 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)     920630 - 920909  COG

 Period of Service Under Review :
Date of Enlistment: 920910               Date of Discharge: 930924

 Length of Service (years, months, days):

         Active: 01 00 15
         Inactive: None

 Age at Entry: 24                          Years Contracted: 4

 Education Level: 12                        AFQT: 48

 Highest Rate: AR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.50 (1)    Behavior: 2.60 (1)                OTA: 2.60

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

Days of Unauthorized Absence: None

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

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

 Chronological Listing of Significant Service Events :

920914:  Medical evaluation. Applicant was evaluated by the Department of Mental Health, Naval Hospital Orlando, FL., Recruit Evaluation Unit (REU). Applicant reported “I just want to go home. I have problems with my ovaries and nobody wants to help me. They just tell me I’m constipated.” Diagnosis deferred. Recommendation: Psychologically fit for duty. Applicant is fully aware of and responsible for her actions and the consequences which a reasonable person might anticipate as a arising from those actions. She knows right from wrong and is capable of conforming her behavior to the right.

930429:  Report of Declaration of Desertion. Applicant declared a deserter 29APR93, having been an unauthorized absentee since 0730, 30MAR93, from Strategic Communications Wing ONE.
930628: Return of Deserter Report. Applicant surrendered to military control at
 2300, 23JUN93 at STRATCOMMWING ONE, located at Tinker AFB, Oklahoma City, OK.

 930809:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence from 0730, 30Mar93 to 2300, 23Jun93 (85 days/surrendered).
         Finding: to Charge I and the specification thereunder, guilty.
         Sentence: Forfeiture of $572.00, HL for 15 days, restriction for 15 days, reduced to AR.
         CA action 930811: Sentence approved and ordered executed.

930809:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense.
930809:          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.
930818:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense.

930831:  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 930924 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 issue 1, the Board determined this issue is without merit. The applicant states she returned from her UA on her own and she wants to show her son that she did what was necessary by accepting the OTH discharge. She also states she was told she could change the status of her discharge in the future. The applicant was determined to be a deserter, having been UA for 85 days. Whether she surrendered or was apprehended is irrelevant. Additionally, it was not her choice to accept her discharge, it was her command’s decision to administratively separate her. Desertion is a court martial offense, which could result in a punitive discharge but her command chose not to pursue that option. 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 upgrade a discharge based on 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 and conduct. 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. 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 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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