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NAVY | DRB | 2000_Navy | ND00-00747
Original file (ND00-00747.rtf) Auto-classification: Denied


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

ex-SR, USNR
Docket No. ND00-00747

Applicant’s Request
The application for discharge review, received 000526, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a personal appearance discharge review. The applicant listed the Disabled American Veterans as his representative on the DD Form 293. Subsequent to the application, the applicant changed representative to the Veterans of Foreign Wars.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 010418. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety in the characterization of the applicant’s service at the time of issue. After review of the applicant’s entire record, specifically including evidence of significant post service conduct, the Board found the Other Than Honorable Discharge inequitable. The Board voted three to two to change the character of the discharge. The discharge shall read: General (under Honorable Conditions)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

Clemency. Based on post service behavior, with understanding of applicant’s mindset at the time of incident.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Letter from Commander, Bureau of Human Resources
Letter from Base Commander, Cleveland Auxiliary Police dated April 29, 2000
Character reference dated April 29, 2000
Character reference dated May 1, 2000
Character reference dated June 6, 2000
Copy of certificate of completion dated December 18, 1998
Copy of certificate dated September 26, 1996
Copy of Private Police Permit #08686
Fingerprints dtd 23 Oct 1998
Patrol Officer Examination results dtd 1 Feb 2000
Letter from Ms C_ P_ dated 16 April 2001

PART II - SUMMARY OF SERVICE

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

 Period of Service Under Review :
Date of Enlistment: 950209               Date of Discharge: 951011

 Length of Service (years, months, days):

         Active: 00 06 26
         Inactive: 00 01 07

 Age at Entry: 20                          Years Contracted: 8

 Education Level: GED/1yr college         AFQT: 35

 Highest Rate: SR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: No Marks    Behavior: No Marks                OTA: No Marks

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

Days of Unauthorized Absence: 40

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 :

950316:  Applicant commenced 36 months active duty under the Seaman Apprenticeship Program.

950630:  Applicant failed to comply with Permanent Change of Station orders and report to USS SAN JACINTO NLT 2400, 30JUN95.
950810:  Applicant surrendered to military control at Naval Reserve Center, OH.

 950810:  Assigned TEMDU at NAVRESCEN, Cleveland, OH for administrative separation processing.
950830:  BUPERS directed USS JACINTO to transfer applicant to NAVRESCEN Cleveland, OH for separation processing for misconduct due to commission of a serious offense (Article 85 Desertion).
950906:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense (violation of UCMJ Article 85 (desertion)) as evidenced by failure to report for duty to USS SAN JACINTO.
950906:          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.
950908:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense (violation of UCMJ Article 85 (desertion). Commanding officer’s comments (verbatim): SNM has readily admitted that he deserted due to personal problems and has indicated a willingness to harm himself if he was returned to naval control. SNM was agreeable to any type of separation. Recommended SNM be expeditiously discharged under other than honorable conditions"

950928:  BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

 990810:  NDRB documentary record review Docket Number ND98-01116 conducted. Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 951011 under other than honorable conditions for misconduct due to commission of a serious offense (desertion) (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 at the time of issue (D and E). After considering the applicant’s service record, significant post service documentation, and testimony, the Board voted three to two to upgrade the applicant’s discharge to General (Under Honorable Conditions) based on an inequity in the Other Than Honorable discharge. Relief is granted.


 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective
22 Jul 94 until 02 Oct 96, 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 85, for desertion, 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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