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NAVY | DRB | 2002_Navy | ND02-00750
Original file (ND02-00750.rtf) Auto-classification: Denied


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

ex-OSSA, USN
Docket No. ND02-00750

Applicant’s Request
The application for discharge review, received 020502, 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. Subsequent to the application for review, the Applicant obtained representation by the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030131. 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 requested an Admin Discharge: I was not forced into Military Separation my DD Form 214 says that I was discharged with an Other Than Honorable Discharge. All I want is for it to read and say is General/Under Honorable Conditions. The only reason for my Military Desertion charge was because my wife ran away with my kids and everything I owned while I was out to deployment for a weapon off-load in Long Beach, CA. I couldn't get anyone to help me in the matter so I took the situation in my own hands and went after my family. My wife desserted me or abandoned me while I was helpless and on active duty plus I had to do something to keep her from hiding out from me with my children.

2. (DAV Issue) After a review of the Former Service Member (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 (Under Other Than Honorable Conditions) Discharge to a (General Discharge Under Conditions) Discharge.

The (FSM) was involved in several acts of misconduct in which he received several Articles of the UCMJ Code of offenses. The most serious offense was Absence Without Leave Charge of over 51 days in which he was apprehended by civilian authorizes and violation of the navy's drug and substance policy.

The (FSM) desires now to have his (Under Other than Honorable) Discharge up-grade to a General (Under Honorable Conditions) Discharge from the US Naval Services.

The (FSM) past behaviors he exhibited and short term of service that lead to his discharge he now feels can be personally attributed to immaturely and inability to handle the stressful military life that lead him to act out in inappropriate ways on active duty status.

The (FSM) now respectfully requests an equitable standard be applied as well as equity in treatment in seeking the board's approval to afford him the opportunity to receive and an up-grade of his (Under Other Than Honorable) Discharge to an General (Under Honorable Conditions) Discharge. The (FSM) sincerely hopes that by respectfully requesting and being granted an Up-Grade of his Discharge and truthfully giving a explanations citing the reasons for his past military abuses fo the naval Services substance Rules and policy and his subsequent dismissal for US Naval Services he may receive some consideration.

The (FSM) feels his military accomplishments of service are a manner of Supreme Honor and Respect he will cherish throughout his lifetime. The (FSM) also states he had always tried to achieve Honor and Respect during his almost entire term of enlistment of military duty in the Navy Service, but just failed on this short period of enlistment.

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 wishes to seek to correct the mistakes he make and the negative behavior he exhibited and that occurred to him in fulfilling his military duty in the in the United States Naval Services.

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, the following additional documentation, submitted by the Applicant, was considered:
Statement from Applicant (2 pages), dated May 17, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     900126 - 901125  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 901126               Date of Discharge: 930226

 Length of Service (years, months, days):

         Active: 02 03 01
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

Education Level: 12                        AFQT: 43

 Highest Rate: OSSA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (1)    Behavior: 3.60 (1)                OTA : 3.60

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM, SSDR

 Days of Unauthorized Absence: 71

 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 :

910815:  NJP for violation of UCMJ, Article 86: Unauthorized absence on or about 2400, 910707 to 2040 910728 (21 days/R).
         Award: Restriction and extra duty for 22 days. No indication of appeal in the record.

921215:  Applicant declared a deserter on 921013 having been an unauthorized absentee since 0700, 921114 from USS HALSEY (CG-23).

930106:  Applicant apprehended by civil authorities on 930103 (1300) at Brownwood, TX. Returned to military control 930103 (1450).

930119:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0700, 921114 to 1300, 930103 (50 days/A), violation of UCMJ Article 87: (4 Specifications), Missing movement, 921130, 921202, 921207, and 921215, violation of UCMJ Article 134: Out of uniform.
         Award: Forfeiture of $300.00 pay per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days, reduction to E-1 (suspended for 6 months). No indication of appeal in the record.
930120:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
930120:  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.
930122:  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): [OSSA R_ (Applicant) has demonstrated a substantial lack of responsibility and little desire to conform to Navy regulations or adapt to military life. He is extremely immature and requires constant supervision. OSSA R_ (Applicant) has become an extreme administrative burden to this command and the U. S. Navy and exhibits no potential for future naval service. His work performance is substandard and his poor attitude is detrimental to the morale of his shipmates. Expeditious ADSEP with Other-Than-Honorable characterization is most strongly recommended.]

930212:  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 930226 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 expected a discharge characterization of general/under honorable conditions he did in fact sign documentation 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 award of non-judicial punishment (NJP) on two occasions where he was found guilty of unauthorized absence, missing ships movement, being out of uniform and additional 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. Relief denied.

 Issue 2: 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 did not provide any credible evidence to support post-service conduct as a reason for upgrade. 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 " 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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