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NAVY | DRB | 2001_Navy | ND01-00405
Original file (ND01-00405.rtf) Auto-classification: Denied


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

ex-OSSR, USN
Docket No. ND01-00405

Applicant’s Request
The application for discharge review, received 010212, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a personal appearance discharge review before a traveling panel closest to Napoleonville, LA. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the Applicant, she was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area. The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing. Subsequent to her application the Applicant requested a documentary discharge review and obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 19 April 2002. 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 characterization of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. (Equity Issue) This former member avers that a horrific relationship, which included beatings and threats on her life, sufficiently mitigated her misconduct of record to warrant upgrade of her characterization of service to honorable.

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

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: 940322               Date of Discharge: 970611

 Length of Service (years, months, days):

         Active: 03 02 20
         Inactive: None

 Age at Entry: 20                          Years Contracted: Unknown

 Education Level: 12                        AFQT: Unknown

 Highest Rate: OSSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.50 (2)    Behavior: 3.70 (2)                OTA: 3.70        4.0 evals
Performance: 2.00 (1)    Behavior: 2.00 (1)                OTA: 2 .00       5.0 evals

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM, SSDR

 Days of Unauthorized Absence: 29

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.

 Chronological Listing of Significant Service Events :

950922:  NJP for violation of UCMJ, Article 92 (2 specs): Dereliction of duty and three specifications of failure to obey a lawful order, violation of UCMJ, Article 89: Disrespect toward a superior commissioned officer.
         Award: Forfeiture of $478 per month for 2 months, restriction and extra duty for 15 days, reduction to OSSR. Forfeiture and reduction suspended for 6 months. No indication of appeal in the record.
960722:  Retention Warning: Advised of deficiency (Failure to pay rent and utilities with provided government funds.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
970226:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86 (4 specs)
 Specification 1: Failure to go to appointed place of duty on 2Oct96, to wit: Family Service Center, Pearl Harbor.
          Specification 2: Failure to go to appointed place of duty on 21Dec96, to wit: scheduled limited duty evaluation.
 Specification 3: Unauthorized absence from 23Dec96 to 21Jan97 (29 days).
Specification 4: Absent from place of duty 0730 - 1000, 18Feb97.
Specification 5: Absent from place of duty 1100 - 1600, 18Feb97.
Specification 6: Failure to go to appointed place of duty on 1500, 19Feb97, to wit: failed to return to COMNAVASE Pearl Harbor after completion of Admiral's All Hands Call.
Specification 7: Absent from place of duty 0730 - 1100, 20Fe97.
         Charge II: violation of UCMJ, Article 92:
         Specification: Failure to obey a lawful order on 20Dec96, to wit: wrongfully leaving the state without leave papers.
         Charge III: violation of UCMJ, Article 107 (4 specs):
         Specification 1: Making false official statement on 20Dec96.
         Specification 2: Making false official statement between 1Oct96 and 30Oct96.
         Specification 3: Making false official statement on 20Nov97.
         Specification 4: Making false official statement on 18Feb97.
 Finding: to Charge I, II and III and the specification thereunder, guilty.
          Sentence: Forfeiture of $600.00, confinement for 30 days, reduced to OSSR.

970319:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
970324:          Applicant advised of her rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
970415:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

970430:  Commander, Naval Base, Pearl Harbor 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 970611 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).

Issue 1. The applicant states, that the horrific relationship she was in sufficiently mitigated her misconduct. The applicant did not provide any documentary evidence to support the claim made in this issue. Normally, to permit relief, an error or injustice must have occurred during the period of enlistment in question. No such error or injustice occurred. The Applicant was afforded all of her rights in accordance with all instructions and regulations. She requested an Administrative Discharge Board. She was represented at the Administrative Discharge Board by a member of the Judge Advocate General's Corps. Based upon a preponderance of the evidence and by unanimous vote, the Board found misconduct and recommended separation with an other than honorable discharge. The board determined the discharge to be proper and equitable. Relief is denied.

Issue 2. The applicant claims her post-service conduct is worthy of an upgrade to her discharge. There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service. However, the NDRB is authorized to consider outstanding post-service factors in the re-characterization of a discharge, to the extent such matters provide a basis for a more thorough understanding of the Applicant's performance and conduct during the period of service under review. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of her not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief based on post-service conduct.

The Applicant did not provide sufficient documentation to warrant a change to her discharge. She is reminded she remains eligible for a personal appearance hearing provided an application is received at the NDRB within 15 years from the date of her discharge. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Legal representation at a personal appearance hearing is highly recommended, but not required. Relief is hereby denied


Pertinent Regulation/Law (at time of discharge)
A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective
03 Oct 96 until 971212, Article 3630605, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B. In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 89 (disrespect towards a superior commissioned officer), Article 92 (failure to obey a lawful order),and Article 107 (false official statement), 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 " 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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