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NAVY | DRB | 2002_Navy | ND02-00680
Original file (ND02-00680.rtf) Auto-classification: Denied


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

ex-AOAR, USN
Docket No. ND02-00680

Applicant’s Request
The application for discharge review, received 020415, requested that the characterization of service on the discharge be changed to general under honorable conditions. 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 030116. 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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. My discharge was inequitable because it was based on one isolated incident in my one year, six months, and eleven days of dedicated service to the U.S. Navy.
I was court martial for being U.A. Please, understand I knew what I did was wrong, but there were documented events that lead me to do such an awful task.
A couple of months prior, my master chief called me in his office to chew me out about battering my wife. Of course, at first I thought he was joking but very soon came to see that he wasn't. He restricted me to the ship while they ran a month or so long investigation. And like I told him from the start I've never laid a hand on my wife. In turn he found that to be true after the results of the investigation came back, and can you believe the only things he told me was that he was "sorry" and "no disrespect but that my wife was crazy". In the meanwhile while this investigation went on I lost my chance for promotion and all my money was going to my wife made the story up. I begged and pleaded for help from my chain of command, my religious leader, and ships counsel but no one gave me the time of day. But when I took the action into my own hands by leaving and seeking help, I got caught and was court martial.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant's DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     920814 - 930706  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 930707               Date of Discharge: 950727

 Length of Service (years, months, days):

         Active: 02 00 21 Does not exclude time lost
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 68

 Highest Rate: AOAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.10 (2)    Behavior: 3.10 (2)                OTA: 3.20

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 141

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

941228:  Applicant to unauthorized absence 0630, 941228.

950127:  Applicant declared a deserter.

950417:  Applicant apprehended in Charleston, SC.

950418:  Applicant returned to military control 0700, 950418.

 950420:  Applicant from unauthorized absence 0955, 950420 (112 days/apprehended).
950420:  Applicant to confinement.

 950602:  Applicant returned to USS AMERICA on TAO's from TRANSITPERSU, Norfolk. VA.
950605:  Applicant released from confinement.

 950612:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence from 941228 to 950420 (112 days).
         Charge II: violation of the UCMJ, Article 87:
         Specification: Missing ship's movement on 950113.
         Finding: to Charge I and II the specifications thereunder, guilty.
         Sentence: Forfeiture of $569.00 per month for 1 month, confinement for 30 days, reduction to AOAR.
         CA action 950614: Sentence approved and ordered executed.

950616:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidence by all punishments under the UCMJ in your current enlistment.
950616:  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

950620:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to absent without leave (30 days or more).

950711:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 950727 under other than honorable conditions for misconduct due to absent without leave (30 days or more) (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).

Responding to the Applicant’s issue, the Board found the Applicant's other than honorable discharge was proper and equitable. 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. There is no evidence of impropriety, inequity or procedural irregularities in the Applicant's discharge. The Applicant's misconduct is clearly documented. After a Summary Court-Martial, he acknowledged and waived his rights to administrative review. He was notified that by waiving his rights and accepting an other than honorable discharge, he could possibly encounter significant difficulties in obtaining employment and other benefits. The Applicant was afforded the appropriate due process at every opportunity. The NDRB found the Applicant's service record devoid of any mitigating or extenuating factors that would warrant an upgrade of the Applicant's discharge. Relief denied.

The following is provided for the benefit of the applicant. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity 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. E vidence of continuing educational pursuits, an employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for clemency, based on post-service conduct.

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), Change 9, effective
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT.

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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