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NAVY | DRB | 2000_Navy | ND00-00907
Original file (ND00-00907.rtf) Auto-classification: Denied


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

ex-FR, USNR
Docket No. ND00-00907

Applicant’s Request
The application for discharge review, received 000717, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions. 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 010201. 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 (verbatim)

1. (Equity Issue) His violations of the UCMJ notwithstanding, this former member opines that his otherwise creditable service record is sufficient to warrant release under honorable conditions.

2. (Equity Issue) This former member further 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:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     940114 - 940221  COG

 Period of Service Under Review :
Date of Enlistment: 940222               Date of Discharge: 950310

 Length of Service (years, months, days):

         Active: 01 00 19
         Inactive: None

 Age at Entry: 18                          Years Contracted: 8

 Education Level: 12                        AFQT: 51

 Highest Rate: FA

 Final Enlisted Performance Evaluation Averages (number of marks):

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

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

Days of Unauthorized Absence: 10

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 :

940922:  NJP for violation of UCMJ, Article 86 (2 specs): (1) Unauthorized absence 0530, 29Aug94 to 0500, 30Aug94, (2) Unauthorized absence 0700, 2Sep94 to 0500, 3Sep94.
         Award: Forfeiture of $100 per month for 2 months, restriction and extra duty for 15 days. Forfeiture suspended for 6 months. No indication of appeal in the record.
940922:  Retention Warning: Advised of deficiency (Unauthorized absence.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
[Extracted from CO's message dated 31Jan95.]
950131:  Vacated suspended forfeiture awarded at CO's NJP dated 22Sep94 due to continued misconduct.
950131:  NJP for violation of UCMJ, Article 86 (2 specs): (1) Unauthorized absence 24Oct94 to 27Oct94 (3 days), (2) Unauthorized absence 29Nov94 to 6Dec94 (7 days), violation of UCMJ Article 87: Miss ship's movement on 24Oc94.
         Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 30 days, reduction to FR. No indication of appeal in the record.
950131:  Retention Warning: Advised of deficiency (Unauthorized absence and missing movement.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

950131:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
950131:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
950131:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. Commanding officer’s comments (verbatim): Fireman Recruit (applicant) is completely unreliable and untrustworthy. He is completely unsuited for service in the U. S. Navy. Since reporting to ANZIO on 1 Jul 94, he has been a constant burden and serious and unending discipline problem. ANZIO has expended extraordinary effort to assist FR (applicant) in correcting numerous personal financial difficulties, yet he continues to be unable to manage his affairs. FR (applicant) requires incessant supervision and cannot be relied upon to complete even the simplest of tasks. He has contributed nothing to the U.S. Navy or USS ANZIO. Virtually every single action is unsatisfactory, totally irresponsible, and indicates a complete and total lack of self-discipline and maturity.
         When ANZIO deployed with IKEBATGRU on 20 Oct 94, FR (applicant) was granted emergent pregnancy leave to expire on 24 Oct 94 prior to commencement of IKEBATGRU Atlantic Transit. He was then ordered, both verbally and in writing, to report on 24 Oct 94 to the AMC Terminal at NAS Norfolk in order to execute previously arranged passenger air transportation while USS ANZIO was still in the VACAPES OPAREA. Even after he was given transportation directly to the terminal counter, FR (applicant) failed to board his scheduled flight and made absolutely no effort whatsoever to contact military authorities. He was therefore charged with missing ship's movement. On 27 Oct 94 FR (applicant) was contacted by a USS ANZIO commissioned officer and instructed to report immediately to DESRON 2 IOT arrange another flight. Rather than reporting in person as directed, FR (applicant) chose to contact DESRON 2 on 27 Oct 94 by telephone. When contacted, DESRON 2 informed FR (applicant) of his UA status and instructed him to report immediately in person to the transient personnel unit (TPU), Norfolk. He complied, reported to TPU on 27 Oct 94, and was then placed in TPU general population. On 29 Nov 94, FR (applicant) went UA once again, not returning until 06 Dec94. He was immediately placed in a restricted status. TPU Norfolk then arranged air passenger transportation to ANZIO and FR (applicant) was returned to the command. While in transit, FR (applicant) was arrested for suspected larceny in Soudha Bay, Crete (prior to USS ANZIO arrival) no charges were filed. He was then released to custody of legal officer, NSA Soudha Bay and returned to command on 28 Jan 95 at which time he made restitution for the money he was suspected of taking. Subsequently, it was determined that he had failed to pay for his hotel room.
         The ANZIO chain of command has expended tremendous energy and exhausted virtually all resources in attempting to help FR (applicant) become a valuable member of the U.S. Navy. He poses a constant and unending threat to good order and discipline. It is recommended that he be discharged from the naval service with a characterization of other than honorable.

950201:  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 950310 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 was proper and equitable (D and E).

In the applicant’s issue 1, the Board found that the applicant violated several Articles of the UCMJ and was therefore brought to NJP on 2 separate occasions during his short time in the service. Unfortunately, the Navy cannot overlook this misconduct when characterizing a discharge. The Board found the applicant was equitably discharged under other than honorable conditions. No relief is warranted.

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), 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 87, missing 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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