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NAVY | DRB | 2002_Navy | ND02-00805
Original file (ND02-00805.rtf) Auto-classification: Denied


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

ex-MMFR, USN
Docket No. ND02-00805

Applicant’s Request
The application for discharge review, received 020515, 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 American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030410. 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. (Equity Issue) This former member avers that his immaturity, youth and limited educational background coupled with his personal problems contributed to and sufficiently extenuated his misconduct of record to warrant upgrade of his characterization of service.

2. (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Letter from Applicant

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     860327 - 860414  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 860415               Date of Discharge: 870512

 Length of Service (years, months, days):

         Active: 00 11 02
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 11                        AFQT: 50

 Highest Rate: MMFA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NOB                  Behavior: NOB             OTA: NOB

Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 56

 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 :

861217:  Retention Warning: Advised of deficiency (Poor military performance), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

861217:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0600, 861103 until 1240, 861116 [13days/S].
         Award: Forfeiture of $315.00 pay per month for 2 months, reduction to E-1. No indication of appeal in the record.

870302:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 870228 having been an unauthorized absentee since 0600, 870129 from SERVSCOLCOM NTC GLAKES IL.

870317:  Report of Return of Deserter. Applicant apprehended by civil authorities on 870312 (1934) at Owensboro, KY. Civil charges not pending. Returned to military control 870312 (2000). Retained onboard for disciplinary action disposition.
         
870408:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0600, 870129 until 2000, 870312 [43days/A].
         Award: Forfeiture of $300.00 pay per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
870413:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by NAVPERS 1070/607 dated 870408.
870413:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
870415:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

870503:  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 870512 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).

In his first issue, the Applicant contends, as a matter of equity, that his ignorance of life as a young sailor precluded him from making mature decisions and that this fact should be considered in the recharacterization of his discharge. The Board found that the Applicant's age, education level, and test scores qualified him for enlistment. While he may feel that his immaturity was a factor that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further 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. Relief on this basis is denied.

The Applicant also contends that his offense was justifiably committed in order to address a critical family situation. The underlying reasons for the Applicant 's conduct, however honorable he contends, does not mitigate his violation of the UCMJ. The Applicant's misconduct, including unauthorized absence greater than 30 days, warranted discharge under other than honorable conditions. The records the Board reviewed showed the separation process to be proper and equitable. Relief on this basis is denied.

Responding to the Applicant’s second issue, there is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. The NDRB is authorized, however, 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 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, certification of non-involvement with civil authorities, and verifiable proof of a substance free lifestyle are examples of verifiable documents that may be provided to receive consideration for relief based on post-service conduct. The Applicant has not provided such documentation for the Board to consider. Relief denied.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560, Change 7/86, effective
15 Dec 86 until 14 Jun 87), Article 3630600, SEPARATION OF ENLISTED MEMBERS 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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