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NAVY | DRB | 2002_Navy | ND02-00269
Original file (ND02-00269.rtf) Auto-classification: Denied


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


ex-OSSN, USN
Docket No. ND02-00269

Applicant’s Request
The application for discharge review, received 020114, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a personal appearance discharge review before a traveling panel closest to Nashville, TN. The Applicant listed the American Legion as the representative on the DD Form 293. In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington, D.C. area. The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030107. 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 3630650).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as submitted
1. (Equity Issue) This former member avers that his UOTHC discharge is too harsh in light of his overall service record.
2. (Equity Issue) This former member further proffers that his grandmother’s illness and subsequent death contributed to and mitigated his periods of unauthorized absences.
3. (Equity Issue) This former member finally 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
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant 's DD Form 214
Statement from Applicant dated May 1, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     960316 - 960821  COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 960822               Date of Discharge: 000216

 Length of Service (years, months, days):
         Active: 03 05 25         Does not exclude lost time
          Inactive: None
Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 50
Highest Rate: OSSN

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: NMF*                 Behavior: NMF             OTA: NMF

 Military Decorations: None
Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 86
*No Marks Found in the service record.
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 :

971215:  Summary Court-Martial.
          Charge I: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence from his unit, to wit: USS DWIGHT D. EISENHOWER (CVN 69) from 0600, 971130 until 1000, 971201 (1 day/surrendered).
          Charge II: violation of UCMJ, Article 87:
          Specification: Through neglect miss movement of the USS DWIGHT D. EISENHOWER (CVN 69) on 971201.
          Finding: to Charge I and II and the specifications thereunder, guilty.
          Sentence: Restriction for 20 days.
         CA action Unknown date: Sentence approved and ordered executed.
971219:  Retention Warning: Advised of deficiency (Summary Court-Martial of 15 December 1997 for unauthorized absence from 971130 to 971201 and through neglect miss ship's movement on 971201), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
990913:  Applicant to unauthorized absence 0700, 990913.

 991024:  Applicant from unauthorized absence 2045, 991024 (41 days/ apprehended ).
991109:  Applicant to unauthorized absence 1230, 991109.

 991224:  Applicant apprehended 0801, 991224 by Provost Marshall Redstone Arsenal Army Base, Huntsville, AL for UA/DES only. Applicant returned to military control 1000, 991224 (44 days/apprehended) by NACIC North Chicago, IL. Lodged in Madison County Jail, Huntsville, AL to await NACIC escorts. Released to NACIC North Chicago, IL at 0840, 991228 FFT TPU Norfolk, VA. Trf and DOB TPU Norfolk, VA at 1525, 991228. Retained onboard for disciplinary action/disposition. Restored to full duty status 1000, 991224 (44 days/apprehended).

000207:  Medical Examination: Applicant found fit for separation.

000216:  DD Form 214: Applicant discharged under other than honorable conditions in lieu of a trial by court-martial, authority: NAVMILPERSMAN, Article 1910-106.
Separation package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 000216 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. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor. T he Applicant’s service was marred by award of a summary court-martial on one occasion and the Applicant’s request for separation in lieu of a court-martial on another occasion for two periods of unauthorized absence. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. An upgrade would be inappropriate. Relief denied.
Issue 2. The Board found that information available for review concerning the illness and death of the Applicant’s grandmother does not sufficiently mitigate the Applicant’s misconduct. Relief denied.
Issue 3. The Applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident 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. Relief not warranted.

The Applicant 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. 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 18, effective
12 Dec 1997 until 10 July 2000, 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 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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