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NAVY | DRB | 2002_Navy | ND02-00477
Original file (ND02-00477.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND02-00477

Applicant’s Request
The application for discharge review, received 020305, 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 021206. 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 3630650.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 I submit three issues for your consideration:

1. That the Board consider both the humanitarian and emotional factors outlined in my statement (document 5) that led to my decision to assist my mother

2. My post service conduct and achievements outlined in documents 1 through 4

3. To advance in the law enforcement career field, that my discharge be upgraded to Honorable.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Statement from Applicant dated January 30, 2002
Character reference from Director, Falmouth Police Department dated January 9, 2002
Character reference from Deputy Sheriff, undated
Character reference from Patrolman dated January 19, 2002
Record check dated November 26, 2001 (3 pages)
Applicant's DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     950720 - 951009  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 951010               Date of Discharge: 970220

 Length of Service (years, months, days):

         Active: 01 02 11 Does not exclude lost time
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 70

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                  Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 397

 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 3630650.


 Chronological Listing of Significant Service Events :

951222:  Applicant to unauthorized absence 0700, 951222.

960122:  Applicant declared a deserter.

970122:  Applicant apprehended by civilian authorities 2355, 970122 and returned to military control 2355, 970122 by Navy Absentee Collection Information Center Great Lakes, IL.

970129:  Legal Memorandum states Applicant requested an administrative discharge under other than honorable conditions for the good of the service in lieu of trial by court-martial.

970204:  Medical Officer determined no psychiatric evaluation necessary.

970204:  Applicant found qualified for OTH separation from active military service.

970220:  DD Form 214: Applicant discharged under other than honorable conditions in lieu of a trial by court-martial, authority: NAVMILPERSMAN, Article 3630650.

Separation package not available.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 970220 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: The Applicant requested that the Board consider the humanitarian and emotional factors that led to his decision to assist his mother. 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 Applicant was apprehended after being in an unauthorized absence status for 397 days. He requested to be discharged in lieu of trial by court-martial as a result of his extended unauthorized absence. The NDRB agrees the Applicant's service was equitably characterized as being performed under other than honorable conditions.

Issue 2: The Applicant requested that his post-service conduct be considered for the purposes of upgrading his discharge. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. The Applicant must be aware that 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 the civilian life subsequent to leaving the service. Normally, to permit relief, the discharge or characterization of service must have been inequitable or improper based on the period of service it was issued. Outstanding post-service conduct, 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, may be considered by the NDRB. The NDRB failed to find an inequity or that the discharge was improper. Relief on this basis is denied.

Issue 3: The Applicant contends that his discharge hampers his ability to advance in the law enforcement career field. The NDRB is appointed with the responsibility of examining the propriety and equity of an Applicant's discharge. This issue presented by the Applicant does not fall under the Board's review authority. Accordingly, no relief can be granted on this issue.

 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 14, effective
03 Oct 96 until 11 Dec 97, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR SEPARATION IN LIEU OF TRIAL BY COURTMARTIAL.

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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