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NAVY | DRB | 2001_Navy | ND01-00899
Original file (ND01-00899.rtf) Auto-classification: Denied


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

ex-AKAR, USN
Docket No. ND01-00899

Applicant’s Request
The application for discharge review, received 010626, 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020110. 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 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. My request for a change in discharge is that I feel the circumstances that surrounded my offense was justified. I feared for my life while on the ship even after going through the chain of command. I served time in the Miramar Brig and was striped of all discharge benefits. Please respond with judgment of this request.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     950928 - 951029  COG

 Period of Service Under Review :
Date of Enlistment: 951030               Date of Discharge: 971112

 Length of Service (years, months, days):

         Active: 02 00 13
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 9 GED            AFQT: 53

 Highest Rate: AKAA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                  Behavior: NMF             OTA: NMF

Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 107

 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 :

960906:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0600-1031, 22Jun96, violation of UCMJ, Article 91: Disobey a lawful order from a PO2 on 28Jun96.
         Award: Forfeiture of $100 per month for 2 months, extra duty for 30 days, confinement for 30 days. Forfeiture suspended for 6 months. No indication of appeal in the record.

961015:  Applicant missed ship's movement.

961105:  Applicant declared a deserter.

 970313:  Applicant to confinement.

970411:  Applicant from confinement.

 970407:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense.
970407:  Applicant advised of his rights and having consulted 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.
970411:  Special Court Martial
         Charge I: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence 0730, 6Oct96 – 0206, 22Jan97, (107 days/surrendered).
         Charge II: violation of the UCMJ, Article 87:
         Specification: Missed ship's movement on 7Oct96.
         Findings: to Charge I and II specification thereunder, guilty.
         Sentence: Confinement for 35 days, forfeiture of $200 per month for 2 months, reduction to AKAR.
         CA 970606: Sentence approved and ordered executed, except for bad conduct discharge.

971006:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to a pattern of misconduct.

971027:  BUPERS 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 971112 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: “My request for a change in discharge is that I feel the circumstances that surrounded my offense was justified. I feared for my life while on the ship even after going through the chain of command. I served time in the Miramar Brig and was striped of all discharge benefits. Please respond with judgment of this request.” The NDRB reviews service records of former service members for propriety and equity. The applicant’s record clearly and properly documents his repeated misconduct. The applicant failed to support his issue with documentation explaining matters of extenuation or mitigation for review by the NDRB. The Board found no impropriety or inequity in the discharge. Relief is denied.

 The applicant remains 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 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. 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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