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NAVY | DRB | 2002_Navy | ND02-00722
Original file (ND02-00722.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND02-00722

Applicant’s Request
The application for discharge review, received 020426, 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 030124. 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. I (Applicant) entered the Navy March of 90. I completed boot camp May 11 90. I was in CO 109 color CO. of my graduating class. I did not have an "A" school upon completion of boot camp. I stayed at Great Lakes for seaman apprenticeship program. During my time in school there were a few lockers broken into. I was one of the accused. I believe it was 6 to 8 guys accused. We were detained in the THU dept. During that stay I was very disappointed not to get to go home after 15 or 16 wks. I went A-wall for 57 days and was turned in to authorities. I returned to Great Lakes and served 57 days in the "Brigg." During my time there I decided that the Navy was not for me, due to the severity of pain I was put through in such a short period of being in the Navy. On my 55 th day my navy lawyer came to me and said that the supposed to be witness was in or participating in "Desert Storm." The charges were dropped and I opted to get out of the Navy due to the mental strain in my so short time in the Navy. I did not receive any council on the OTH I received. I would like to receive some information on this situation. I do not have any of my separation papers. A response ASAP would be gladly appreciated. Thanks.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     900226 - 900320  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 900321               Date of Discharge: 910104

 Length of Service (years, months, days):

         Active: 00 09 14
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 31

 Highest Rate: SR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA                  Behavior: NMA             OTA : NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 54

 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 :

900716:  Applicant declared a deserter.

900824:  Applicant apprehended by civilian authorities in Campbell, OH at 2005, 900824. Applicant returned to military control 2040, 900824. Applicant returned to NAVCRUITRACOM Great Lakes, IL at 0915, 900829.

901022:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 121 (2 specs).
         Specification 1: Steal U.S. currency, a value of $80.00 from SR on 900608.
 Specification 2: Steal U.S. currency, a value of $75.00 from SR on 900608.
          Charge II: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence from 0001, 900701 until 2040, 900824 (54 days/apprehended).
         Finding: to Charge I and II and the specifications thereunder, guilty.
         Sentence: Forfeiture of $482.79 per month for 1 month.
         CA action 901128: Sentence approved and ordered executed.

901205:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
901205:  Applicant advised of his rights and having consulted 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.
901205:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. Commanding Officers comments (verbatim): [It is evident that subject member is guilty of commission of a serious military offense and his potential for continued useful naval service is doubtful. Therefore, it is recommended that he be separated from the naval service with an Other Than Honorable Discharge.]

901219:  CNMPC 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 910104 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: In the Applicant’s case the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge was proper and equitable. Although the Applicant states that he “did not receive any counsel on the OTH he received,” he did in fact consult with counsel specifically regarding the intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. Furthermore, the Applicant’s summary of service is marred by a Summary Court-Martial where he was found guilty of 2 specifications of larceny and an unauthorized absence in excess of 30 days. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives that regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. 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. An upgrade to honorable would be inappropriate. The Applicant can obtain a copy of his service record through the National Personnel Records Center. Relief denied.

 The following is provided for the Applicant’s information: T here 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, a positive 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 relief, 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 15560A), Change 8, effective
21 Aug 89 until 14 Aug 91, 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 " 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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