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NAVY | DRB | 2001_Navy | ND01-00964
Original file (ND01-00964.rtf) Auto-classification: Denied


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

ex-AOAR, USN
Docket No. ND01-00964

Applicant’s Request
The application for discharge review, received 010723, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to hardship. The applicant requested a documentary record discharge review. The applicant designated a member of Congress as the representative on the DD Form 293. In the acknowledgement letter, the applicant was advised that members of Congress or their employees do not normally represent applicants before the board. Applicant further advised unless the applicant can obtain Congressman written authorization, he may obtain representative from the list provided to the applicant. Written authorization from congressman or election of a different representative has not been received from the applicant.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020130. 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 and the reason for discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. My discharge was inequitable because I was given a choice between demotion to E-3 and forfeiture of ½ month's pay, restriction for 60 days and stay in the military or demotion to E-1, 30 days in the Brig and go home. I was 19 years old then and I made the wrong choice. I should be punished for something as minor as the charge was, but to never be able to serve my country again. I love the Navy and will always.

2. My discharge was unfair because, until the time of the infractions, I was an exemploritary sailor with a record to prove it.

3. Had I known the implications of the decision I made 6 years ago. If would have never happened, but it did, so I put it up to you to decide.

4. The discharge I received was too stern, for the misconduct I committed. I feel as if, I should have at least been given a General Discharge at the time, or Hardship Discharge, so I could return to service later when my situation had cleared up.

5. To the Board, I would like to serve in the U.S. Navy, again, this time for a career of service. I would also like to ask the Board, if I could possibly return to military service as at least (E-3), considering my past military record and service.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
COMNAVPERSCOM ltr to Congresswoman C_ dtd Jul 2, 2001
Hdqtrs, USMC ltr to Congresswoman C_ dtd May 1, 2001
Congresswoman C_ ltr to Applicant dtd Dec 29, 2000
NATTC's Letter of Outstanding Achievement dtd 7 Apr 95
Enlisted Performance Evaluation (95Apr25 - 95OCT19)
Certificate of Appointment (E-4) dtd 20 Oct 1995
 Admin Remarks (Page 13) dtd 96Apr19 withdrawing recommendation for advancement to AO2 (unsigned)
NATTC's Honor Certificate dtd 7 APR 95
Certificate of Appreciation (AO Class A" School) dtd 7 Apr 95
FASOTRAGRULANT MOTT Weapons OJT/PJT Training Form (2 pages)
Newspaper Article
Congresswoman C_ ltr to Applicant dtd May 2, 2001
AO "A" School Test Scores (4 pages)
Applicant's ltr to the Board explaining reason for sub-standard performance
 Copy of DD Form 214
Evaluation Report & Counseling Record (95NOV 16 until ------) (unsigned)
No duty Chit dtd 16 Feb 97
Lenoir Community College registration Form dtd 05/04/2001
Marriage Certificate 24 Jan 96
Certificate of Absolute Divorce or Annulment dtd 22 Dec 2000
Criminal Record Check dtd 7-30-01
Applicant's letter to Board (3 pages)
Character Reference Letter from former employer undated
Character Reference Letter from former employer dtd Aug 6, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     940817 - 941127  COG

 Period of Service Under Review :
Date of Enlistment: 941128               Date of Discharge: 960606

 Length of Service (years, months, days):

         Active: 01 06 09 (Doesn't exclude lost time/confinement time.)
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 50

 Highest Rate: AO3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.0 (1)     Behavior: 4.0 (1)                 OTA: 4.0 (4.0 eval)
                  1.0 (1)                  1.0 (1)                           1.29 (5.0 eval)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, MUC

 Days of Unauthorized Absence: 49

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

960108:  Unauthorized absence from USS DWIGHT D EISENHOWER, Newport News, VA at 0600. Intentions unknown.

960116:  Surrendered onboard USS EISENHOWER, AT 0600, absence not excused (8 days).

960212:  Unauthorized absence from USS DWIGHT D EISENHOWER, Newport News, VA at 0600. Intentions unknown.

960216:  Surrendered onboard USS EISENHOWER, AT 0600, absence not excused (4 days).
960227:  Unauthorized absence from USS DWIGHT D EISENHOWER, Newport News, VA at 0600. Intentions unknown.

960328:  Declared deserter.

960404:  Surrendered onboard USS EISENHOWER, AT 0600, absence not excused (37 days).

960404:  Report of Return of Deserter: Surrendered to military authority at 1230, 96APR04 at USS EISENHOWER. Retained on onboard pending disciplinary action.

960416:  Summary Court Martial
         Charge I: violation of the UCMJ, Article 86 (2 Specs)
         Specification 1 - UA from 96FEB27 to 96APR04
         Specification 2 - UA from 96FEB12 to 96FEB16
         Findings: To Charge I and specifications 1 and 2 thereunder, guilty.
         Sentence: Reduction to E-1, forfeiture of $581 per month for one month and 30 days confinement.
         CA 960424: Sentence approved and ordered executed.

960416:  To confinement.

960510:  Released from confinement and returned to full duty (25 days confinement).
960424:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by all serious offenses in your current enlistment.
960501:  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. Did not object to the separation.
960508:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

960519:  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 960606 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).

Issues 1 and 3. The Board found that unauthorized absence for a total of 41 days is not a minor offense as the applicant implies. Additionally, he indicates he was not aware of the implications of the decisions he made. This period of unauthorized absence constitutes the commission of a serious offense. The Board found that the applicant’s age, education level, and test scores qualified him for enlistment. While he may feel that his youth was a factor that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service. On 960501, the applicant was 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 make a statement and obtain copies of the documents used to support the basis for the separation. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

Issue 2. The Board found that the applicant’s record of service prior to committing his misconduct does not mitigate the seriousness of the charges for which he was subject to a summary court-martial. The discharge was proper and equitable. Relief denied.

Issue 4. The applicant states his discharge was too stern for the misconduct he committed. The Board found no evidence that the applicant had been unfairly denied separation for hardship or that his discharge characterization was inequitable. Additionally, there are no requirements that dictate that an applicant should be allowed to return to military service after rectifying any personal problems. The applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Relief denied.

Issue 5. The applicant states he wants to serve in the U.S. Navy again. The Board is under no obligation to upgrade an individual’s discharge for the purpose of rejoining any branch of the military service. The applicant showed total disregard for Navy regulations by repeatedly violating Articles of the UCMJ. His Commanding Officer determined the applicant had no potential for further useful military service and recommended discharge.

BUPERS directed the discharge. The Board determined the applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Relief denied.

 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 relief, based on post-service conduct. 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. Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective
22 Jul 94 until 02 Oct 96, Article 3630600, 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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