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NAVY | DRB | 2002_Navy | ND02-00163
Original file (ND02-00163.rtf) Auto-classification: Denied


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

ex-BTFR, USN
Docket No. ND02-00163

Applicant’s Request
The application for discharge review, received 011130, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions. 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 020815. 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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

Some issued were renumbered.

 1. My discharge was inequitable because the Applicants military record was outstanding and was based upon a few isolated incidents in 20 months of service.

2. I feel my discharge was inequitable because it was based on bias options and on very few isolated incidents in over 20 months of distinguished service.

3. I feel that I was reprimanded for an incident that was taken too harshly and was not presented with all the facts. It clearly does not reflect my naval record and honor before the incident.

4. For the last 7 years, I have been an abiding citizen of the United States and my discharge does not reflect my character, ethics and patterns in society.

5. If it was not for this discharge I would still be in the U.S. Navy today doing the job I was trained for.

6. I feel I was not given proper opportunity for counseling and given the chance to make amends for my discharge actions.

 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)     940214 - 940412  COG

 Period of Service Under Review :
Date of Enlistment: 940413               Date of Discharge: 960313

 Length of Service (years, months, days):

         Active: 01 11 01
         Inactive: None

 Age at Entry: 30                          Years Contracted: 4

 Education Level: 12                        AFQT: 62

 Highest Rate: BTFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 0.00 (0)    Behavior: 0.00 (0)                OTA: 0.00

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 59

 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 :

950629:  Applicant to unauthorized absence 0700, 29Jun95.

950728:  Applicant declared a deserter.

 950728:  Applicant returned from unauthorized absence 1930, 28Jul95 (29 days/surrendered). Applicant transferred to USS ARTIC (AOE-8) to report NLT 0600, 1Aug95.
950804:  NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 92 (2 specs): Failure to obey other lawful order.
         Award: Forfeiture of $400 per month for 2 months, restriction and extra duty for 45 days, reduction to BTFA. No indication of appeal in the record.
951228:  Applicant commences unauthorized absence 0700, 28Dec95.

960123:  Applicant missed ship's movement.

960126:  Applicant missed ship's movement.

960126:  Applicant declared a deserter.

960127:  Applicant missed ship's movement.

 960127:  Applicant returns from unauthorized absence 1853, 27Jan96 (30 days/surrendered). Applicant returned to USS ARCTIC (AOE 8) 2000, 31Jan96.

960202:  NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 87 (3 specs): Missing movement.
         Award: Forfeiture of $400 per month for 2 months, restriction and extra duty for 45 days, reduction to BTFR. No indication of appeal in the record.
960206:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. [Extracted from CO's message dated 9Feb96.]
960205:  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. [Extracted from CO's message dated 9Feb96.]
960209:  Commanding Officer, USS ARCTIC (AOE 8) recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

960304:  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 960313 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 through 3 and 6: The Board found the Applicant's contentions without merit. Despite his claim that his service was "outstanding" and his discharge was based on a few isolated incidents, the record reveals he committed numerous serious offenses during his short term of service in the U.S. Navy. He was UA for a total of 59 days, missed ships movement three times and failed to obey two lawful orders.

The term "serious offense" should not be confused with what is considered serious in the civilian world. The Uniform Code of Military Justice (UCMJ) categorizes a wide range of offenses: disrespectful language, failure to obey a lawful order or written regulation, missing ship's movement, unauthorized absence in excess of 30 days, making false official statements, and so forth, right up to the most "serious" crimes of spying, aiding the enemy in time of war, mutiny, rape and murder. Although all of these offenses come under the broad UCMJ category of "serious offense", some are clearly more heinous than others. A person in the military must abide by the standards set forth in the UCMJ, regardless of what guidelines his civilian counterparts might utilize. Missing ships movement, long-term unauthorized absences and disobeying lawful orders are "serious offenses" under the UCMJ. The commission of any single "serious offense" supports a discharge under other than honorable conditions. Counseling is not required prior to discharge for processing a member out of the service for misconduct due to commission of a serious offense. The Applicant's discharge was proper and equitable. Relief on this basis is not appropriate.

Issue 4: 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. E vidence of continuing educational pursuits, positive employment records, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct. The Applicant contends his post-service conduct over the last seven years warrants an upgrade to his service, but he failed to provide any of documentation. Relief denied.

Issue 5: The NDRB recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharges. In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The NDRB agrees that the Applicant's service was equitably characterized as being performed under other than honorable conditions. Relief is not warranted.

The Applicant is reminded that the period of eligibility for a personal appearance hearing is 15 years from the date of discharge. The application package must be submitted to the NDRB prior to the expiration of the 15 year period. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Representation at a personal appearance hearing is recommended but not required.



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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