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NAVY | DRB | 2001_Navy | ND01-00739
Original file (ND01-00739.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND01-00739

Applicant’s Request
The application for discharge review, received 010507, 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011127. 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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. My discharge was inequitable because of the family members I was taking care of was dying and my command was not very supportive.

2. I would like my discharge change because I would like to come back in and get more training in a specific field.

3. I would also like my discharge change because I would like to further my education.

 Documentation
Only the applicant's service record was reviewed. The Board was unable to obtain the applicant's medical record and the applicant did not provide any additional information for the Board to consider.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     960308 - 960430  COG

 Period of Service Under Review :
Date of Enlistment: 960501               Date of Discharge: 991004

 Length of Service (years, months, days):

         Active: 03 05 04 (Doesn't exclude lost time)
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 38

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*        Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: Navy "E: Ribbon, SSDR

Days of Unauthorized Absence: 147

*No Marks Found
 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

960903:  Unauthorized absence from SSC Great Lakes at 0600.

960908:  Surrendered at SSC Great Lakes at 0730 (5 days).

 961217:  NJP for violation of UCMJ, Article 91: willfully disobeying.
         Award: Correctional custody for 30 days. No indication of appeal in the record.
961223:  NJP for violation of UCMJ, Article 91: willfully disobeying; violation of UCMJ Article 92: failure to obey lawful order.
         Award: Confinement on bread & water for 3 days. No indication of appeal in the record.
981207:  Unauthorized absence from USS CARNEY (DDG 64) at Mayport, FL.

 990421:  Surrendered to military control at 1000, 99APR21, at TPU Norfolk, VA. (132 days).

990517:  Unauthorized absence from USS CARNEY (DDG 64), Mayport, FL.

990520:  Surrendered to military control at 2211, 99MAY20, at USS CARNEY (DDG 64), Mayport, FL. (4 days)

990809:  Special Court Martial
         Charge I: violation of the UCMJ, Article 86:
Specification 1: Unauthorized absence 7 Dec 98 - 21 April 99, [135 days/A.]
          Charge II: violation of the UCMJ, Article 91:
         Specification: willfully disobeying a petty officer
         Findings: to Charge I and II specification thereunder, guilty.
         Sentence: Confinement for 90 days (70 days suspended for period of six 6 months per pre-trial agreement) and reduction to E-2.
         CA 990809: Sentence approved and ordered executed.
        
990809:  Transferred to TPU NAS Jacksonville, FL, for confinement.

990817:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense.
990817:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights.
990817:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense as evidence by CO's NJPs on 17 Dec 96 and 23 Dec 96 and Special Court-Martial on 9 Aug 99. Commanding officer’s comments: (verbatim): "SA (Applicant) agreed to waive his administrative board. Based on the seriousness of the offense, I recommend SA (Applicant) be separated from the naval service with an Other Than Honorable discharge.
990826:  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 991004 under Other Than Honorable conditions for misconduct due to Commission of a serious offense (A). The Board presumed regularity in the conduct of governmental affairs (B). 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 (C and D).

Issue 1. The applicant states, his discharge was inequitable because the family member he was taking care of was dying and his command was not supportive. There is nothing in the applicant’s service record, nor did the applicant provide any documentation to show that his command was aware of his personal problems or that he attempted to use his chain of command for assistance. The records show, the applicant repeatedly violated the UCMJ by willfully disobeying a lawful order, and for unauthorized absence for 135 consecutive days. The applicant went to Special Court Martial and was found guilty. The applicant did not provide any evidence to prove there was an error in procedure or that the discharge characterization was inequitable. Therefore, relief is denied.

Issue 2. The applicant states, he would like to come back in and get more training. The Board is under no obligation and will not upgrade an individual’s discharge for the purpose of allowing him/her to re-enter any branch of military service. The Board determined the discharge was proper and equitable. Relief denied.

Issue 3. The applicant states, he would like his discharge upgraded so he can further his education. The Board is under no obligation and will not upgrade an individual’s discharge for the purpose of furthering his/her education. The Board determined the discharge was proper and equitable. Relief denied.

The following is provided for the benefit of the applicant. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the applicant’s enlistment. Additionally, 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 recharacterization of a discharge, 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. 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 his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct. The applicant did not provide any of these documents. He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his 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.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 97 until 29 March 2000, Article 1910-142 [formerly 3630605]. SEPARATION 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 86 (unauthorized absence for a period in excess of 30 days), and article 91 ( Willfully disobeying), 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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