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NAVY | DRB | 2000_Navy | ND00-00804
Original file (ND00-00804.rtf) Auto-classification: Denied


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

ex-GSMFR, USN
Docket No. ND00-00804

Applicant’s Request
The application for discharge review, received 000609, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to secretarial authority. The applicant requested a documentary record discharge review. The applicant listed the American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010111. 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 and reason for the applicant’s service. The Board’s vote was unanimous that the character and reason for the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim0

1. (Equity Issue) This former member avers that he did not receive proper counseling before discharge and thereby warrants upgrade.

2. (Equity Issue) This former member also proffers personal problems, his wife's pregnancy, sufficiently mitigated his misconduct of record to warrant upgrade.

3. (Equity Issue) This former member further requests a narrative reason to secretarial authority.

4. (Equity Issue) This former member finally requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Statement from applicant
Copy of DD Form 214 (2 copies)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     900608 - 900702  COG

 Period of Service Under Review :
Date of Enlistment: 900703               Date of Discharge: 920313

 Length of Service (years, months, days):

         Active: 01 08 11
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 31

 Highest Rate: GSMFA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.00 (1)    Behavior: 1.00 (1)                OTA : 2.00

 Military Decorations: None

 Unit/Campaign/Service Awards: NER

Days of Unauthorized Absence: 51

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 :

900711:  Retention Warning from Recruit Training Command, Naval Training Center, Great Lakes, IL: Advised of deficiency (Non-swim qualified.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900816:  Retention Warning from Recruit Training Command, Naval Training Center, Great Lakes, IL: Advised of deficiency (4 th Class Swimmer qualified.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

911112:  Applicant to unauthorized absence 0900, 12Nov91.

911213:  Applicant declared a deserter.

920102:  Applicant to unauthorized absence 2100, 2Jan92 (51 days/surrendered).

 920116:  NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ Article 87 (5 specs): Missing ship's movement.
         Award: Forfeiture of $379.35 per month for 2 months, restriction and extra duty for 45 days, reduction to GSMFR. No indication of appeal in the record.
920116:  Retention Warning from USS LEYTE GULF (CG 55): Advised of deficiency (Unauthorized absence, missing ship's movement (5 specifications.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920205:  NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 92: Failure to obey other lawful written order.
         Award: Restriction and extra duty for 30 days. No indication of appeal in the record.
920226:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
920226:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights .

920228:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

920305:  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 920313 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 and reason for discharge was proper and equitable (D and E).

 In the applicant’s issue 1, the Board found that the applicant received counseling before his discharge and on 920226, elected to waive his rights. In addition, the applicant has provided no documentation to indicate that his rights were prejudiced. No relief will be granted based on this issue.

In response to issue 2, the Board found nothing in the records nor did the applicant submit any supporting documentation that showed that his personal problems were of sufficient magnitude that they could not be resolved through standard military channels or by the applicant’s chain of command. In fact, the Board found that the applicant’s age, education, test scores, prior service, promotions and awards were sufficient to qualify him for enlistment. The Board will not grant relief on the basis of this issue.

The applicant requests in issue 3 to have his narrative reason changed to Secretarial Authority. The Board finds that the applicant was properly discharged for misconduct due to commission of a serious offense based on his record of misconduct consisting of missing movement (5 specifications), unauthorized absence greater than 30 days and failing to obey an order. No other narrative reason would be more appropriate to describe why the applicant was discharged from the U.S. Navy. Relief is denied.

In the applicant’s issue 4, 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 in the civilian life subsequent to leaving the Service. However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D). Those factors include, but are not limited to, the following: evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided any documentation of good character and conduct. Therefore no relief will be granted. The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

 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. 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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