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NAVY | DRB | 2002_Navy | ND02-00182
Original file (ND02-00182.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND02-00182

Applicant’s Request
The application for discharge review, received 011218, 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 021115. 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/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 1910-106 (formerly MPM 3630650).


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. My discharge is improper due to the fact that my discharge was based on the incident of going UA which I believe could have been prevented had I received the proper assistance from my chain of Command. Prior to going UA I spoke to a Chaplin, than to my supervisor who in turn sent me to my chief where I never received any assistance until after I did what I had to do for my family. I wish I could take back what I did but I am very sorry but it is hard to have situations change when you have no support from the chain of Command and being a Junior Sailor.

The Second time that I went UA was because of the fact at that time I was suppose to be out of the Navy but than I was put on restriction after I was told that I had did my time and after I had been there two weeks waiting to be discharged. So I could go care for my very ill mother.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
DD Form 149

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     980218 - 980720  ELS
                  USNR (DEP)      990415 - 990503  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 990504               Date of Discharge: 010321

 Length of Service (years, months, days):

         Active: 01 10 18
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 11                        AFQT: 63/50

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.00 (3)    Behavior: 1.00 (3)                OTA: 1.50

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 152+

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

 Chronological Listing of Significant Service Events :

991230   Reported for duty AIMD Keflavik, Iceland.

000308:  NJP for violation of UCMJ, Article 116: Breach of peace on 6Feb00, violation of UCMJ, Article 128: Assault consummated by a battery on 6Feb00, violation of UCMJ, Article 134: Disorderly conduct on 6Feb00.
Award: Forfeiture of $507 per month for 1 month, extra duty for 30 days, reduction to ASAR. Reduction suspended for 6 months. No indication of appeal in the record.
000715   Applicant absent without leave from 0001, 4Jun00 to 0859, 6Jun00 and from 0701, 13Jun00 to 1017, 5Jul00. “ASAA W_ (Applicant) failed to return to her place of duty despite numerous attempts by her chain of command to assist to that end. Voluntarily surrendered to Transit Personnel Unit (TPU) Norfolk, Virginia on July 5, 2000.”
 [Extracted from Evaluation Report and Counseling Record for reporting period 27Nov99-15Jul00]

000725   Vacation of suspended reduction in rate sentence from CO’s NJP on 3Mar00 due to continued misconduct. “Job performance since return from UA status is average…Personal desire to be back home has overshadowed her (Applicant’s) professional abilities. She has failed to demonstrate, by her actions, any desire to remain a part of the U. S. Navy.”
         [Extracted from Evaluation Report and Counseling Record for reporting period 16Jul00-25Jul00]

000727   Awarded CO’s NJP for violation of UCMJ Article 86 (two counts).
         [Extracted from Evaluation Report and Counseling Record for reporting period 26Jul00-13Aug00]

000811   Adverse Performance Evaluation Report for the period 16Jul00-25Jul00 an Adverse Performance Evaluation Report for the period 26Jul00-13Aug00.
000813   Transferred to TPU Norfolk, VA.

000826:  Lost time began.

010125:  Lost time ended (152 days).

 010321:  DD Form 214: Applicant discharged under other than honorable conditions in lieu of a trial by court-martial, authority:
         MPM 3630650.
[Corrected authority: NAVMILPERSMAN, Article 1910-106 (formerly MPM 3630650)]

The Applicant’s separation package is missing from the service record. The NDRB
requested the Applicant provide pertinent documentation to the Board for review, if
available. The NDRB received no response from Applicant to this request.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 010321 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).

The Board disagrees with the Applicant’s assertion that her discharge was improper. The Applicant was discharged after an unauthorized absence of 152 days. An unauthorized absence of over 30 days is triable by court martial and can result in a Bad Conduct or Dishonorable Discharge, as well as confinement. Although all of the pertinent documentation was not available for the Board’s consideration, the Board presumed regularity in the conduct of government affairs and determined that the discharge was proper and equitable. The Applicant did not provide any substantial creditable evidence, that the contested discharge decision was wrong or unfair. Relief denied.

 The Applicant’s discharge characterization accurately reflects her service to her country. There is no evidence in the official record, nor did the Applicant provide any certifiable documentation that there was any impropriety during her enlistment concerning a lack of Command support, nor is there any evidence that the Applicant had requested assistance from the Command for a humanitarian or compassionate reassignment to care for her mother. Relief denied.

It was further noted by the Board that the Applicant’s service record is marred by award of non-judicial punishment (NJP) on two occasions. The Applicant’s violations of the UCMJ included: Breach of peace; Assault consummated by a battery; Disorderly conduct and two counts of Absence without leave. The summary of service clearly reflects the Applicant’s willful disobedience of the orders and directives that regulate good order and discipline in the Naval Service, and falls far short of that required for an honorable characterization of service. An upgrade to under honorable conditions would be inappropriate. Relief denied.

The NDRB has no authority to change reentry codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

The following is provided for the Applicant’s information. 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, a positive employment record, documentation of community service, certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for clemency, based on post-service conduct.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. 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 29, effective
11 Jul 2000 until Present, Article 1910-106 (formerly 3630650), SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B. A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article [e.g., 86, unauthorized absence for a period more than 30 days] 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 “ afls14.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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