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NAVY | DRB | 2002_Navy | ND02-00774
Original file (ND02-00774.rtf) Auto-classification: Denied


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

ex-ETSA, USNR (TAR)
Docket No. ND02-00774

Applicant’s Request
The application for discharge review, received 020509, 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 030214. 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. Dear Board,
 I am requesting to have my discharge upgraded so that I may receive the Montgomery G.I Bill. I feel as though I deserve the G.I Bill because: (1) monies were deducted out of my first years enlistment for that purpose (2) I would have completed my initial 4 year enlistment with an Honorable Discharge had it not been for the 2 year extension that I signed in boot camp. My records should show that when I joined the Navy in Philadelphia, I joined for a period of 4 years. My ASVAB scores allowed me the choice of being an Electronic Technician. I know that there is no way to prove it, but once in boot camp, a day came about that we had to go and verify our orders/NEC, and I was told that if I didn't sign the two year extension, I would lose my school. Young, scared(as most are in boot camp), and just knowing any better, I agreed to it. About the time that I ready to graduate ET school, I found that to be untrue. I found that I couldn't have lost my school, I just wouldn't have made ET3 straight out of school, I would have had to take a test to be promoted. Had I known this, I wouldn't have signed the extension because the Navy wasn't a career move for me.
Although I had a 2 week unauthorized absence, I still would've received an Honorable Discharge after my initial enlistment. Don't get me wrong, I take full responsibity for being U.A., however, I did have a legitimate reason, and my reasons helped me to keep my rank and rate at Captains Mast.
I also take full responsibility for the second unauthorized absence, even though it was much longer in duration my reasons for the second U.A. were more serious. To simplify the story as much as possible, my mother was diagnosed with a rare form of asthma around 1993 which began to make normal daily task such as going up stairs, taking out the trash, and carrying groceries harder than usual. From about the age of six, my mother was divorced, and I've been living with her to this day. She has no man, and I am both her, and my fathers only child. I know that her condition wasn't life threatning, but I was the only one who could take care of her and the things that she couldn't do for herself on a daily basis. I also know that I had an obligation with the Navy, but to me, the obligation to my mother was/is much more important. My mother made her condition known to me a long time before I went U.A. for the second time. Before I went U.A., I tried to do the right thing. Hopefully my service records will show, that while attached to the Donald B. Beary, I spoke with the chaplain on numerous occasions to try and get a Hardship Discharge. That attempt failed, but I didn't stress because my ship was stationed at Staten Island N.Y which was only 1@1/2 hours away from home- I wasn't able to get a Hardship Discharge, but I was able to get orders to the John F. Kennedy which was stationed, and dry-docked in Philadelphia. Those orders helped me out alot with my mothers situation. I was a good 10 minutes away from home. I was there for a year before the ship was ready to come out of dry-dock. Once the Kennedy came out of dry-dock, Mayport, Fla. was going to be the new home port. By that time, I was mentally tired of trying to get a Hardship Discharge or orders close to home, so I went U.A.. "Why so long? I had no intentions on coming back, but after a while, I decided that if I was going to be out, I wanted to do it the right way to remove the stipulation from over my head. Secondly, I was doing more harm than help the longer I stayed gone.
 Let me end this by saying that the reasons that I gave for going U.A. were just that, reasons, not accuses. I'm just trying to get what I feel as though I deserve so that I may further my education and better myself Right now I am a Police Officer for the School District of Philadelphia and have been for three years. It is a good job, but I would like to get back into the Electronic field and pursue a career in that. The G.I. Bill would more than help me reach my goal. Whatever your decision may be, I thank you for your time and consideration. Sincerely,
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Recommendation, undated
Character/job reference dated July 2002
Applicant's DD Form 214 and 215

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 910223               Date of Discharge: 960729

 Length of Service (years, months, days):

         Active: 04 06 16
         Inactive: 00 11 00

 Age at Entry: 19                          Years Contracted: 8

 Education Level: 12                        AFQT: 66

 Highest Rate: ET3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.53 (3)    Behavior: 3.53 (3)                OTA: 3.67

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, JMSM

 Days of Unauthorized Absence: 136

 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 :

940419:  Applicant to unauthorized absence 0730, 940419.

 940505:  Applicant from unauthorized absence 1355, 940505 (16 day/surrendered).
940511:  NJP for violation of UCMJ, Article 86: Unauthorized absence from unit, organization, or place of duty. violation of UCMJ, Article 87 (2 specs): Missing movement.
         Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 9 days, reduction to ETSN. Reduction suspended for 6 months. No indication of appeal in the record.
951014:  Applicant declared a deserter.

 960206:  Special Court Martial
         Charge I: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence from 0700, 950913 until 0645, 960112 (120 days/surrendered).
         Charge II: violation of the UCMJ, Article 87:
         Specification: Missed ship's movement on 950915
         Findings: to Charge I and II specifications thereunder, guilty.
         Sentence: CHL for 89 days, forfeiture of $300 per month for 3 months, reduction to ETSA.
         CA 960206: Sentence approved and ordered executed.

960430:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
960430:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
960508:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

960530:  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 960729 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: The Board has no authority to upgrade a discharge for the sole purpose of obtaining VA educational benefits. The Board’s charter limits its review to a determination on the propriety and equity of the discharge. In the Applicant’s case the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge was proper and equitable.

The Applicant’s summary of service is marred by award of non-judicial punishment (NJP) on one occasion and a Special court Martial. 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.

 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 sufficient credible evidence to mitigate the seriousness of his misconduct. 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), Change 9, effective
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

 B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article [e.g., 86, for unauthorized absence for a period in excess of 30 days] if adjudged at a Special or General Court-Martial.
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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