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NAVY | DRB | 2001_Navy | ND01-00795
Original file (ND01-00795.rtf) Auto-classification: Denied


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


ex-AE3, USN
Docket No. ND01-00795

Applicant’s Request
The application for discharge review, received 010522, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a personal appearance before the board in the Washington National Capital Region. The applicant listed the American Legion as the representative on the DD Form 293. In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.
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, authority: NAVMILPERSMAN, Article 3630610. Discharged in absentia.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. (Equity Issue) His violations of the UCMJ notwithstanding, this former member opines that his overall 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 this application.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of Enlisted Performance Record
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN               871229 - 910429  HON
          Inactive: USNR (DEP)     871030 - 871228  COG
Period of Service Under Review :
Date of Enlistment: 910430               Date of Discharge: 970421

 Length of Service (years, months, days):

          Active: 05 11 22
          Inactive: None

 Age at Entry: 21                          Years Contracted: 6
Education Level: 10                        AFQT: 59

 Highest Rate: AE3
Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.50 (2)    Behavior: 3.60 (2)                OTA: 3.60
Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, GCM, SSDR
Days of Unauthorized Absence: 1628

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 3630610. Discharged in absentia.
Chronological Listing of Significant Service Events :

921019:  Applicant to unauthorized absence 2330, 19Oct92.
921029:  Applicant from unauthorized absence 0800, 29Oct92 (9 days/surrendered).

921213:  Applicant declared a deserter. Unauthorized absence since 1100, 13Nov92.

 951206:  Applicant arrested by Portsmouth Police department 0900, 6Dec95.
970420:  Applicant administratively SOB TPU Norfolk, VA at 0800, 20Apr97 (1619 days). Applicant appeared at Portsmouth Circuit Court and sentence to 10 years. Applicant currently at Deep Meadow Detention Center, State Farm, VA.
970421:  DD Form 214: Discharge under other than honorable conditions by reason of misconduct due to civil conviction.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 970421, in absentia, under other than honorable conditions for misconduct due to civil conviction (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 Board found that the applicant’s overall service record was insufficient to warrant an upgrade to his discharge. The applicant was in an unauthorized absence status for 1628 days. This reflects his willful disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for an honorable characterization of service. An upgrade would be inappropriate. Relief denied.
Issue 2. The discharge was proper and equitable. 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. The applicant did not provide sufficient documentation to warrant an upgrade to his discharge. 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. Relief denied.


Pertinent Regulation/Law (at time of discharge)
A. Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 03 Oct 96 until 11 Dec 97, Article 3630610, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - CIVILIAN CONVICTION .

 B. 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.

C. 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.
D. 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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