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NAVY | DRB | 2002_Navy | ND02-00026
Original file (ND02-00026.rtf) Auto-classification: Denied


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

ex-ADAR, USN
Docket No. ND02-00026

Applicant’s Request
The application for discharge review, received 010920, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed for convenience of the government. The applicant requested a documentary record discharge review. The applicant did not designate a representative on the DD Form 293. Subsequent to the application, the applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020715. 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 and narrative reason 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, as submitted

1. (Equity Issue) This former member which regrets his in-service misconduct proffers that he has suffered the stigma of his discharge for many years and now warrants upgrade of his characterization of service.

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
Only the service and medical records were reviewed, as the applicant did not provide additional documentation for the Board to consider.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     890421 - 900211  COG

 Period of Service Under Review :
Date of Enlistment: 900212               Date of Discharge: 911020

 Length of Service (years, months, days):

         Active: 01 08 09 (Doesn't exclude lost time.)
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 53

 Highest Rate: ADAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.4 (1)     Behavior: 3.4 (1)                 OTA : 3.4

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC, SWASM, Navy "E" Ribbon, NDSM

Days of Unauthorized Absence: 98

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 (In Absentia).

 Chronological Listing of Significant Service Events :

901217:  Unauthorized absence from USS DWIGHT D EISENHOWER (CVN 69).

901227:  Surrendered on board USS EISENHOWER (10 days).
910220:  NJP for violation of UCMJ, Article 86: unauthorized absence from unit from 0630, 90DEC17 to 0630, 90DEC27.
         Award: Forfeiture of $200 per month for 1 month, restriction and extra duty for 15 days. No indication of appeal in the record.
910220:  Retention Warning: Advised of deficiency (violation of UCMJ, Article 86 - UA from unit from 0630, 90DEC17 to 0630, 90DEC27), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910425:  Report of Declaration of Desertion: Declared deserter 91APR17 having been an unauthorized absentee since 0630 91MAR18 from USS DWIGHT D EISENHOWER (CVN 69).

910520:  Report of Return of Deserter: Apprehended by military authority while on board USS DWIGHT D EISENHOWER 91MAY15. Retained onboard for disciplinary action (58 days).

910612:  Summary Court Martial
 Charge I - violation of UCMJ Article 85: desertion from 18MAR91 until terminated by apprehension 15MAY91.
Charge II - violation of UCMJ Article 87: missed ship's movement on 18 Mar 91 and 15 Apr 91.
         Award: 30 days confinement, forfeiture of $500 per month for 1 month, reduction to E-1.

910708:  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 punishments under the UCMJ in the current enlistment.

910708:  Applicant advised of 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 and the right to make a statement.

910726:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. Commanding officer’s comments: Applicant's misconduct is incompatible with continued naval service. In view of the serious nature of offenses he is considered to have no potential for further productive military service. I strongly recommend that he be discharged from the naval service under other than honorable conditions by reason of misconduct due to commission of a serious offense.

910916:  BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

911002:  USS DWIGHT D EISENHOWER requested authority to discharge applicant in absentia since he commenced a period of unauthorized absence prior to completion of separation processing and is still UA.

911018:  BUPERS authorized applicant's discharge in absentia.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged in absentia on 911020 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’s discharge characterization accurately reflects his service to his country. No narrative reason other than misconduct more clearly describes the circumstances surrounding the applicant’s processing for administrative separation. The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. The Board’s charter limits its review to a determination on the propriety and equity of the discharge. 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, good conduct or hardship encountered in civilian life, subsequent to leaving the service. Relief denied.

Issue 2. 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 15560A), Change 8, effective
21 Aug 89 until 14 Aug 91, 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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