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NAVY | DRB | 2002_Navy | ND02-00427
Original file (ND02-00427.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND02-00427

Applicant’s Request
The application for discharge review, received 020226, 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 021029. 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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. To the board of review my name is A_ A_ (Applicant) and am I asking that my OTH discharge be upgraded to Honorable discharge. I have been more than a model citizen, I am a father of three boys, and I am also a pastor of a local church. I am involved in my community as far as making a different in the lives of the people who I come in contact with. I love my country and I support it as well. I am sending my pastoral appointment license alone with ordination license for your review. I have made a valiant effort to turn my life around and I hope you will all be able to see that and grant me my request. Thank you for your time. Sincerely A_ A_ (Applicant).

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of Certificate of Ordination dated June 12, 1998
Copy of Pastor Appointment Certificate dated June 8, 2001
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     891216 - 900131  COG

 Period of Service Under Review :
Date of Enlistment: 900201               Date of Discharge: 920814

 Length of Service (years, months, days):

         Active: 02 04 13
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 26

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.05 (4)    Behavior: 3.05 (4)                OTA : 3.10

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR

Days of Unauthorized Absence: 63

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

900225:  Applicant retained in the Naval service, despite defective enlistment and induction due to fraudulent entry into the naval service as evidenced by failure to disclose pre-service civil involvement: Possession of marijuana, 1986, Los Angeles, CA (6 months probation). However, any further deficiencies in performance or conduct may result in processing for separation.

920116   Applicant UA from USS CALIFORNIA this date.

920214   Applicant surrenders onboard USS California this date.

920227:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
         Award: Restriction and extra duty for 30 days, reduction to E-2 (suspended for 4 months). No indication of appeal in the record.

920317   Absence not excused, charged 29 days lost time.

920418:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 920417 having been an unauthorized absentee since 0715, 920416 from USS CALIFORNIA (CGN-36).

920605:  Report of Return of Deserter. Applicant surrendered to military authorities on 920602 (1248) at TPU NAVSTA LONG BEACH CA. Returned to military control 920602 (1248). Retained onboard USS CALIFORNIA for disciplinary action.

920612:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86: Unauthorized absence for 44 days.
         Finding: to Charge I and the specification thereunder, guilty.
         Sentence: Confinement for 30 days, forfeiture of $523.00 pay per month for 1 month, reduced to E-1.
         CA action 920612: Sentence approved and ordered executed.
920709:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
920709:          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.
920713:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. Commanding Officer’s comments (verbatim): [SR A_ (Applicant’s) attitude is poor, his performance always minimal. He is a constant problem to his division and the CALIFORNIA. SR A_ (Applicant) often stated overwhelming desire to be out of the Navy. He represents a continual risk of flight. This is highlighted by non-judicial punishment and a summary court-martial.]

920807:  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 920814 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).

Issue 1: The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted. 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. The summary of service clearly documents the Applicant’s willful disregard for the requirements of military discipline and demonstrated he was unfit for further service. The Applicant’s service is marred by award of non-judicial punishment as well as a Summary Court Martial. Under other than honorable conditions most clearly describes the Applicant’s character of service.

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. The post-service documentation submitted by the Applicant does not mitigate his conduct while on active duty, and therefore an upgrade based upon post-service conduct is not warranted. Relief denied.

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), effective 15 Aug 91 until
04 Mar 93, 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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