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NAVY | DRB | 2002_Navy | ND02-00383
Original file (ND02-00383.rtf) Auto-classification: Denied


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


ex-AR, USN
Docket No. ND02-00383

Applicant’s Request
The application for discharge review, received 020215, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing before the Board in the Washington National Capital Region. The applicant listed the American Legion as the representative on the DD Form 293. In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021008. 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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as submitted

1. (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
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of police record check dated December 28, 2001
 Statement from applicant, undated
 Character reference dated December 20, 2001
Character reference from applicant's wife dated December 24, 2001
 Copy of DD Form 214
 Statement from applicant dated February 28, 2002
Letter of recommendation dated February 28, 2002
 Character reference dated February 26, 2002
 Letter from State of South Carolina, Office of the Governor dated March 1, 2002
Letter from applicant dated March 9, 2002
 Character reference dated February 28, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USNR (DEP)     980526 - 980531  COG
Period of Service Under Review :
Date of Enlistment: 980601               Date of Discharge: 990119
Length of Service (years, months, days):
         Active: 00 07 19
         Inactive: None
Age at Entry: 18                          Years Contracted: 3

 Education Level: 12                        AFQT: Unknown
Highest Rate: AR

 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: 34

 *No Marks Found in the service record
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).
Chronological Listing of Significant Service Events :

981214:  Applicant declared a deserter. Unauthorized absence since 0700, 12 December 1998. Remarks AR (applicant) was previously declared a deserter on 8 December 1998 having been an unauthorized absentee since 0600, 9 November 1998. AR (applicant) surrendered to TPU, San Diego, CA at 1815, 9 December 1998. USS PELELIU returned to San Diego on 11 December 1998 and attempted to retrieve SNM from TPU, San Diego. He had been released on regular liberty. AR (applicant) was expected for duty on 12 December 1998 at TPU, San Diego but failed to muster. A phone call was placed to his home of residence in Tornillo, Texas (phone number deleted). His mother, (name deleted), indicated AR (applicant) had called her on 9 December 1998 requesting an airline ticket back to Texas. He had indicated to her that he had been administratively discharged from the naval service. His mother was informed of his current absentee status. Another call was placed on 14 December 1998. It was confirmed that SNM is currently residing at (address deleted).
981216:  Summary Court-Martial.
          Charge I: violation of the UCMJ, Article 86 (2 specs):
          Specification 1: Unauthorized absence from 0600, 9 November 1998 until 1815, 9 December 1998 (30 days/surrendered).
          Specification 2: Unauthorized absence from 0730, 11 December 1998 until 0630, 16 December 1998 (4 days/surrendered).
         Charge II: violation of the UCMJ, Article 87:
          Specification: Missed ship's movement on 18 November 1998.
          Finding: to Charge I and II and the specification thereunder, guilty.
         Sentence: Forfeiture of $616.00 pay per month for 1 month, confinement for 30 days.
          CA action 981228: Sentence approved and ordered executed.

981216:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
981216:  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.
990109:  Applicant released from confinement.
990114:  COMPHIBGRU THREE 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 990119 under other than honorable conditions for misconduct due to the 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 NDRB has no authority to change reenlistment 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. Relief is therefore denied.
The applicant’s discharge characterization accurately reflects his service to his country. 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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence that the applicant is drug free, are examples of verifiable documentation 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. 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 97 until 29 March 2000, Article 1910-142 [formerly 3630605]. SEPARATION 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 " 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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