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NAVY | DRB | 2002_Navy | ND02-00130
Original file (ND02-00130.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND02-00130

Applicant’s Request
The application for discharge review, received 011022, 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 020701. 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/Separation in lieu of trial by court martial, authority: NAVMILPERSMAN, Article 3630650.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. I very much understand the mistakes made by myself during my youth and my first active duty enlistment. I am requesting this upgrade based upon current reserve service. I have served in the Ohio Army National Guard as a 63T10 (Bradley Fighting Vehicle Mechanic) since 1998 June, until transferring to the Naval Reserve on 22 Aug 2001. I have served that unit with the upmost dedication and advanced to the rank of BU3 during which time I have now begun enlistment proceedings to again become active in the U.S. Navy. I thank you for your time and am thanking you in advance for this discharge upgrade.

 Documentation
In addition to the service record (there was NO DISCHARGE PACKAGE AVAILABLE), the following additional documentation, submitted by the applicant, was considered:
Copy of National Guard Contract
Copy of Navy Reserve Contract (2 pages)
Copy of Request for Conditional Release

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     880319 - 880626  COG

 Period of Service Under Review :
Date of Enlistment: 880627               Date of Discharge: 910530

 Length of Service (years, months, days):

         Active: 02 07 04
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 76

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.90 (2)    Behavior: 2.80 (2)                OTA: 3.10

 Military Decorations: None

 Unit/Campaign/Service Awards: CGBUCM, RSSR, CGSOR, NDSM

 Days of Unauthorized Absence: 121

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

UNDER OTHER THAN HONORABLE CONDITIONS/separation in lieu of trial by court martial, authority: NAVMILPERSMAN, Article 3630650.

 Chronological Listing of Significant Service Events :

890120:  NJP for violation of UCMJ, Article 86: Absence from unit.
         Award: Forfeiture of $100.00 pay per month for 1 month, restriction and extra duty for 45 days. No indication of appeal in the record.

890313:  NJP of 890120 disallowed this date. Good conduct since awarded NJP merits a reduction in punishment.

890802:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 890720 having been an unauthorized absentee since 0730, 890619 from USS SAMUEL ELIOT MORISON (FFG-13).

891003:  Report of Return of Deserter. Applicant apprehended by civil authorities on 890918 (1328) at London, OH. Returned to military control 890918 (1328). Retained onboard for disciplinary action.

891004:  NJP for violation of UCMJ, Article 86: UA from 890619 to 890918 (91 days/A).
         Award: Confinement for 3 days, forfeiture of $349.00 pay per month for 2 months, reduction to E-1. No indication of appeal in the record.

900728:  NJP for violation of UCMJ, Article 86: Absent from his appointed place of duty.
         Award: Reduction in rate (suspended for 5 months), extra duty for 30 days. No indication of appeal in the record.

900828:  NJP for violation of UCMJ, Article 86: Absent from his appointed place of duty.
         Award: Reduction in rate (suspended for 5 months), extra duty for 30 days. Correctional Custody for 30 days. No indication of appeal in the record.

901018:  NJP for violation of UCMJ, Article 86: Absent from his appointed place of duty.
         Award: Restriction to the ship for 7 days. No indication of appeal in the record.

901114:  NJP for violation of UCMJ, Article 86: (2 Specifications), Absent from unit less than 24 hours.
         Award: Restriction to the ship and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.

910104:  Retention Warning: Advised of deficiency (Habitual tardiness and unauthorized absences as manifested by CO's NJP's on 890120 for violation of UCMJ, Article 86, absence from unit from 881203 to 900102, on 891002 for violation of UCMJ, Article 86, absence from unit from 890619 to 890918, on 900728 for violation of UCMJ, Article 86, UA from appointed place of duty, on 900828 for violation of UCMJ, Article 86, UA from appointed place of duty, on 901017 for violation of UCMJ, Article 86, UA from appointed place of duty; Unsatisfactory performance and failure to make sufficient progress toward advancement and qualification due to a pattern of poor work habits, lack of motivation, and disregard for authority as evidenced in the applicant’s past UCMJ violation, performance evaluations, and length of time in service). Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910506:  Member charged with Article 86 and 87, case referred to court-martial.
NO DISCHARGE PACKAGE AVAILABLE

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 910530 under other than honorable conditions in lieu of a trial by court-martial (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

Issue 1. The applicant’s discharge characterization accurately reflects his service to his country during this enlistment. 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 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 15560A), Change 7, effective
25 May 89 until 14 Aug 91, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR SEPARATION IN LIEU OF TRIAL BY COURTMARTIAL.

B. A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article 86, unauthorized absence, and Article 87, missing movement, upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-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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