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NAVY | DRB | 2002_Navy | ND02-00478
Original file (ND02-00478.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND02-00478

Applicant’s Request
The application for discharge review, received 020305, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The Applicant requested a personal appearance hearing discharge review before a traveling panel. The Applicant listed Disabled American Veterans as his 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, DC 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 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

 1. My son was ill, I was notified by the red cross that I should come home. I was given leave, but overstayed by one week. When I returned I was placed in the brig. My base was Norfolk VA.

2. I had called my commanding officer, in Norfolk and explained that I had to stay with son. He told me to get back as soon as possible. I was preparing to leave when they came and picked me up. This was the following day that I spoke to my commanding officer. Upon my return I was in the brig.

3. I was briefed on what could happen to me. I chose to take the discharge.

4. Since I returned, I have been able to find work. I am now attending Richland Community College in Decatur IL. I am pursing physical therapy in sport medicine.

5. (DAV Issue) After a review of the Former Service Members (FSM) DD Form 293 Application for the Naval Discharge Review Board of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to support the contentions as set forth by the Applicant, in his request that he be given the opportunity to upgrade his Undesirable (Under Other Than Honorable Conditions Discharge) to a Honorable Discharge.

The (FSM) entered the Naval Service on June 28, 1996 until March 07, 1997 a period of over (6) Months and 22 Days creditable service. During this period the (FSM) served with (2) Non-Judicial Punishments (1) charge of admitted drug abuse and a subsequent AWOL charge, when he failed to return to his command after being on leave to attend to his sick son a period AWOL from December 20, 1996 to February 05, 1997. The (FSM) performed his military duties without any difficulty except for the stated reason on his narrative of discharge character of service discharge. The (FSM) before his discharge was under going a (PEB) Physical Evaluation Board for prior childhood Asthma illness as well as service connected problems with pain in his lower back. Now the FSM seeks to have his discharge up-graded to seek entitlements and claim benefits for what he feels is a service connected medical conditions that occurred in military service.

The (FSM) desires now to have his Undesirable (Under Other Than Honorable Conditions) Discharge up-graded to an Honorable Discharge from the United States Naval Forces.

The (FSM) now feels the service connected condition was service related and aggravated by military service and that he should be compensated for his medical conditions. The service connected condition is preventing the (FSM) from a stable employment future.

We respectfully request that the (FSM) be given complete and duly consideration by the board. We also respectfully request that the board consider each reasonable explanation submitted by the (FSM) who now wishes to seeks to correct the mistakes that he feel that he make, while a member of the United States Naval Forces.

We ask for the Boards careful and sympathetic consideration of all the evidence of record Used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the Applicant.

 Documentation
In addition to the service record (there was NO DISCHARGE PACKAGE AVAILABLE), the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     960622 - 960627  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 960628               Date of Discharge: 970307

 Length of Service (years, months, days):

         Active: 00 06 22
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 38

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA*                 Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 48

*No Marks Available.

 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 :

970124:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 0730, 970120 having been an unauthorized absentee since 0730, 961220 from TPU NORVA.

970211:  Report of Return of Deserter. Applicant apprehended by civil authorities on 970206 (1525) at Decatur, IL. Returned to military control 970206 (1600) by Navy Absentee Collection Information Center, Great Lakes, IL.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 970307 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).

Issues 1-5. The Applicant failed to provide sufficient documentation to overturn the presumption that his discharge was proper and equitable. While he may feel that his family problems were factors that contributed to his actions, the record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The Veterans Administration determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

The Applicant’s discharge characterization accurately reflects his service to his country. 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 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 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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