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NAVY | DRB | 2001_Navy | ND01-00358
Original file (ND01-00358.rtf) Auto-classification: Denied


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

ex-AN, USN
Docket No. ND01-00358

Applicant’s Request
The application for discharge review, received 010130, 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. Subsequent to the application for review, the applicant obtained representation from American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010928. 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/Separation in lieu of trial by court martial, authority: NAVMILPERSMAN, Article 3630650.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (Verbatim)

 1. My discharge was unfair because the primary reason why I joined the U.S.Navy in the first place, was the assurance given me by my recruiter at Subic Bay Naval Station that I can become a United States citizen by virtue of my enlistment. This promise later on proved to be false and I felt misled and shortchanged. This aforementioned promise was made immediately before and reiterated after I was made to sign a contrary document. Moreover, because of said promise I gave up my college education then.

2. My discharge was oppressive because the naval authority in Treasure Island Naval Station in San Francisco, CA never considered for a moment that my failure to return to my Command was due to humanitarian reasons brought about by the need to take care of my grandmother (who incidentally died at the age of 90 at out house in the Philippines) when I saw her sorry state during my duly approved vacation to the Philippines

3. My discharge was discriminatory because theoretically and perhaps technically my enlistment made me a stateless person at that time, owing to the fact that I could not be a U.S. citizen in spite of my enlistment in the U.S. Navy and at the same time automatically renouncing my Philippine citizenship the moment I swore allegiance to the United States Government and Constitution, as provided for under the Philippines Constitution and as a consequences thereof as follows: Constitution Of The Republic of the Philippines Article IV Citizenship.

4. My discharge was inequitable because I had no intent to breach or escape from my contract with the Navy. In fact, my U.S. navy records would bear me out that during my actual time in service, I consistent 4.0 sailor. I voluntarily went back to the United States in April of 1992 after finishing my law degree on March 21, 1992, a little over a year after my grandmother died and after knowing that Subic Bay Naval Station was already in the process of closing down. There is a principle in criminal statues which states that "there is no crime committed if the mind and intent of a person is not criminal". Proof that I voluntarily went back to the United States is the fact that I took great effort in obtaining a U.S. non-immigrant visa here in the Philippines just so I can legally enter into the United States of America to personally appear and explain my side to the Navy.

5. (Equity Issue) This former member further requests that the Board include provision of SECNAVINST 5420.174C, enclosure (1), Chapter 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 Quarterly Grade Report from Olympic College in Bremerton, Washington
Copy of Letter dated September 7, 1984 from the Dean of Instruction of Olympic College
Copy of Enlisted Performance Evaluation Report
Copy of Memorandum dated January 16, 1985 for striker nominees
Copy of Bachelor of Science College Degree from the University of San Carlos
Copy of Letter of Congratulation dated March 21, 1988
Copy of Bachelor of Law College Degree from the University of San Carlos
Copy of Transcript of Records (3 pgs)
Copy of Certificate of Title
Copy of Sec 5, Article IV of the Constitution of the Republic of the Philippines
Copy of Letter from the Integrated Bar of the Philippines (IBP) National President
Letters from Applicant (2)
Copy of Certificate of Merit (Law)
Copy of Daughter Certificate of Merit (Sixth in Excellence with Second Honors)
Copy of Daughter Certificate of Merit (Eighth in Excellence with Second Honors)
Copy of Daughter Certificate of Merit (Fourth in Excellence with Second Honors)
Copy of Daughter Certificate of Merit (Fourth in Excellence with Second Honors)
Copy of Daughter Certificate of Merit (Second in Excellence with Second Honors)
Copy of Daughter Certificate of Merit (Salutatorian of the Year 20000)
Copy of Daughter Certificate of Appreciation (Piano) HOMENAJA A PILAR CONCERT 1
Copy of Daughter Certificate of Appreciation (Piano) CEBU'S YOUNG PIANISTS ALL MOZART RECITAL CONCERT 3
Copy of Second Daughter Certificate of Merit (Second in Excellence with Second Honors)
Copy of Second Daughter Certificate of Merit (Fourth in Excellence with Second Honors)
Copy of Second Daughter Certificate of Merit (Third in Excellence with Second Honors)
Copy of Second Daughter Certificate of Merit (Fourth in Excellence with Second Honors)
Copy of Certificate of Recognition (First Place in the Math Quiz Bowl)
Copy of Second Daughters Birth Certificate
 Copy of Daughter Certificate of Merit (Second in Excellence with First Honors)
 Copy of Second Daughter Certificate of Merit (Fifth in Excellence with Second Honors)
 Copies of Police Record Clearance (2)
Police Record Clearance

PART II - SUMMARY OF SERVICE

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

 Period of Service Under Review :
Date of Enlistment: 840214               Date of Discharge: 920616

 Length of Service (years, months, days):

         Active: 01 00 26
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 15                        AFQT: 80

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (1)    Behavior: 4.00 (1)                OTA: 4.00

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

Days of Unauthorized Absence: 2532

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

UNDER OTHER THAN HONORABLE CONDITIONS/separation in lieu of trial by court martial, authority: NAVMILPERSMAN, Article 3630650.

 Chronological Listing of Significant Service Events :

850617:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 850617 having been an unauthorized absentee since 0700, 850510 from USS RANGER (CV-61).

920421:  Report of Return of Deserter. Applicant apprehended by civil authorities on 920419 (2000) at San Francisco, CA. Returned to military control 920419 (2000). Orig retained custody pending transfer to TRANSITPERSU Treasure Island, CA. TEMDU for DISPACT/DISPO.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 920616 under other than honorable conditions in lieu of a trial by court-martial (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).

 The applicant’s first issue states: “My discharge was unfair because the primary reason why I joined the U.S.Navy in the first place, was the assurance given me by my recruiter at Subic Bay Naval Station that I can become a United States citizen by virtue of my enlistment. This promise later on proved to be false and I felt misled and shortchanged. This aforementioned promise was made immediately before and reiterated after I was made to sign a contrary document. Moreover, because of said promise I gave up my college education then.” The Board found nothing in the record to support the allegation that US citizenship was offered to the applicant. On 840214 the applicant signed a page 13 stating that he fully understood “the effect of this enlistment upon my Philippine citizenship and that under existing law, enlistment into the US Navy does not improve my chance of becoming a naturalized US citizen.” The Board found no impropriety or inequity in the discharge based on the enlistment contract. Relief is not warranted.

The applicant’s second issue states: “My discharge was oppressive because the naval authority in Treasure Island Naval Station in San Francisco, CA never considered for a moment that my failure to return to my Command was due to humanitarian reasons brought about by the need to take care of my grandmother (who incidentally died at the age of 90 at our house in the Philippines) when I saw her sorry state during my duly approved vacation to the Philippines.” The applicant’s issue presented a matter of extenuation that he felt was not considered by the discharge authority, specifically his need to care for his grandmother. There is nothing in the record to show the applicant made a request for humanitarian relief prior to desertion. The Board considered the issue and found that the applicant’s reason for desertion did not sufficiently mitigate his misconduct. The Other Than Honorable discharge accurately characterizes his service. Relief is denied.

The applicant’s third issue states: “My discharge was discriminatory because theoretically and perhaps technically my enlistment made me a stateless person at that time, owing to the fact that I could not be a U.S. citizen in spite of my enlistment in the U.S. Navy and at the same time automatically renouncing my Philippine citizenship the moment I swore allegiance to the United States Government and Constitution, as provided for under the Philippines Constitution and as a consequences thereof as follows: Constitution Of The Republic of the Philippines Article IV Citizenship.” The Board found no evidence of discrimination due to the applicant’s citizenship. The applicant’s citizenship issues make no foundation for a discharge change based on equity or propriety. The applicant deserted from the US Navy. The Other Than Honorable discharge accurately characterizes the applicant’s service. Relief is denied.

The applicant’s fourth issue states: “My discharge was inequitable because I had no intent to breach or escape from my contract with the Navy. In fact, my U.S. navy records would bear me out that during my actual time in service, I consistent 4.0 sailor. I voluntarily went back to the United States in April of 1992 after finishing my law degree on March 21, 1992, a little over a year after my grandmother died and after knowing that Subic Bay Naval Station was already in the process of closing down. There is a principle in criminal statues which states that "there is no crime committed if the mind and intent of a person is not criminal". Proof that I voluntarily went back to the United States is the fact that I took great effort in obtaining a U.S. non-immigrant visa here in the Philippines just so I can legally enter into the United States of America to personally appear and explain my side to the Navy.” The Board considered the applicant’s service record including his performance marks in the discharge. Along with the performance marks, the Board considered the applicant’s offense- desertion (away for six years and eleven months ). The Board noted the applicant was not tried for his misconduct, rather, he accepted administrative separation in lieu of trial by court martial. The issue regarding criminal intent bears no relevance. The applicant’s misconduct clearly outweighed any positive accomplishments he may have made while on active duty. Relief is not warranted.

The applicant’s fifth issue states: “(Equity Issue) This former member further requests that the Board include provision of SECNAVINST 5420.174C, enclosure (1), Chapter as it pertains to post-service conduct, in assessing the merits of his application.” The Board carefully reviewed the applicant’s documentation and found the applicant’s educational accomplishments were made while the applicant was a deserter. While the Board is authorized to consider post service in the discharge review, the Board did not find the applicant’s post service documentation supported any change in the discharge. The Board noted the applicant’s educational accomplishments were made while he was a deserter from the US Navy. The applicant provided documentation of his children’s accomplishments. The Board did not find these documents relevant. 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 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR SEPARATION IN LIEU OF TRIAL BY COURTMARTIAL.

B. A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article [e.g., 86, unauthorized absence for a period more than 30 days] upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-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 “ afls10.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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