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NAVY | DRB | 2001_Navy | ND01-00622
Original file (ND01-00622.rtf) Auto-classification: Denied


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

ex-BTFR, USN
Docket No. ND01-00622

Applicant’s Request
The application for discharge review, received 010404, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a documentary record discharge review. The applicant listed a civilian counsel as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011214. 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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. FN (applicant), S.S. #(SSN deleted), D.O.B. 12/16/1966, was prosecuted via a SPECIAL COURT MARTIAL for a violation of Article 86,Unauthorized Absence from his assigned duty station. The defendant was absent between the dates of 7 November 1986 through 4 January 1987. FN (applicant) accepted responsibility for this violation by entering a guilty plea before the Court. Two Officers were called during the course of the court martial Ens. T_ P_ T_, USN and Ens. T_ L_, USNR. Both officers were Division Officers onboard the U. S. S. KOELSCH who directly supervised the defendant. Both stated that he was an above-average sailor, performed his duties well and asked that he be retained for Naval service. The court martial record also indicated that he had received a Letter of Appreciation for the performance of his duties. After making a statement of admission, FN (applicant) was sentenced to a reduction in grade to E-1, confinement for 45 days, and forfeiture of $438.00. The defendant was retained in the Naval Service. Subsequently, an Administrative Separation Action was commenced against FN (applicant) Due to his immaturity and lack of understanding of the administrative process, FN (applicant) waived his right to legal counsel and his right to appear before an Administrative Separation Board. The defendant waived these important rights and received an administrative discharge from the United States Navy. The ultimate characterization of his discharge was General under Other Than Honorable Conditions. Due to the defendant's age (20) and lack of life experience, he had little understanding of the dramatic effect that this characterization would have on his future goals in life. This discharge was inequitable based on the totality of FN (applicant's) record of service. (Applicant) seeks to have his discharge characterization changed to that of general Under Honorable Conditions. This change of characterization will allow (applicant) the opportunity to pursue his career employment goals. Sincerely,
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Eight pages from applicant's service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     850427 - 850624  COG

 Period of Service Under Review :
Date of Enlistment: 850625               Date of Discharge: 870615

 Length of Service (years, months, days):

         Active: 01 11 21
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 67

 Highest Rate: BTFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (1)    Behavior: 3.40 (1)                OTA: 3.40

 Military Decorations: None

 Unit/Campaign/Service Awards: CGMUC

 Days of Unauthorized Absence: 59

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 :

860123:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0730, 3Jan86 to 2330, 5Jan86 (2 days/surrendered).
         Award: Forfeiture of $100 per month for 1 month. No indication of appeal in the record.
860716:  NJP for violation of UCMJ, Article 113: Sleeping while on roving patrol.
         Award: Extra duty for 14 days. No indication of appeal in the record.
860716:  Retention Warning: Advised of deficiency (Poor military performance.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
861208:  Applicant declared a deserter. Unauthorized absence since 2345, 7Nov86.

870104:  Applicant returned from deserter status, 1230, 4Jan87.

870209:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence from 2345, 7Nov87 until 0730, 4Jan87 (57 days/surrendered).
         Findings: to Charge I and specification thereunder, guilty.
         Sentence: Forfeiture of $438 per month for 1 month, confinement for 45 days, reduction to BTFR.
         CA 870330: Sentence approved and ordered executed.

870227:  Applicant to confinement, sentence of SPCM.

870406:  Applicant from confinement.

870406:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
870406:          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.
870518:  Chief of Naval Personnel recommended to Assistant Secretary of the Navy (Manpower and Reserve Affairs) the separation of the applicant under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
870521:  Assistant Secretary of the Navy (Manpower and Reserve Affairs) directed discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
870603:  CNMPC 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 870615 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 response to the applicant’s issue, the Board determined that, even though the applicant had fairly good performance evaluation averages and verbal support from some of his supervisors, the applicant’s OTHC discharge was equitable. The applicant received two NJP’s and a Special Court-Martial in a one-year period. The applicant’s second NJP was for a violating UCMJ Article 113 for sleeping on a roving patrol which is a serious offense. The applicant’s Special Court-Martial was for violation of UCMJ Article 86 for being UA for 57 days, which is also a serious offense. The applicant could have received a Bad Conduct Discharge for either of these offenses. The Board finds no reason to grant relief concerning this issue.

The following is provided for the applicant’s edification. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E). The applicant must be aware that 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 the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB. The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is highly recommended.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560, Change 7/86, effective
15 Dec 86 until 14 Jun 87), Article 3630600, SEPARATION OF ENLISTED MEMBERS 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 " 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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