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NAVY | DRB | 2002_Navy | ND02-00877
Original file (ND02-00877.rtf) Auto-classification: Denied


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

ex-SA, USNR
Docket No. ND02-00877

Applicant’s Request
The application for discharge review, received 020607, 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 030311. 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 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. In September 1995, my wife C_ L_ H_ was arrested for Grand Theft. She had to get a court appointed lawyer who told her she was in serious trouble and was looking at 6 years.

At the time we had an 18 month old son. I informed my command of my situation and told them where I stood in this matter. I also informed them that my wife's legal representative told me that she would be going to jail. My command was the USS Supply a brand new supply ship we were set to deploy pretty soon. My command told me there was no way that I could be reassigned. He suggested to me to have my in-laws or my parents watch my son, I told them that was not an option after discussing this with both parents and in-laws. I again asked my command for either a hardship discharge or a reassignment.

They told me NO!
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: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 940615               Date of Discharge: 970124

 Length of Service (years, months, days):

         Active: 02 07 10                  [Does not exclude lost time]
         Inactive: 00 02 16

 Age at Entry: 20                          Years Contracted: 8

 Education Level: 12                        AFQT: 37

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.80 (1)    Behavior: 3.60 (1)                OTA: 3.80

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, NER

 Days of Unauthorized Absence: 208

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.
[Note BUPERSINST 1900.8 lists the authority as 3630600 instead of 3630605]

 Chronological Listing of Significant Service Events :

960220:  Applicant to unauthorized absence.

 960307:  Applicant returned from unauthorized absence (16 days/surrendered).
960409:  NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 87: Missing ship's movement.
         Award: Forfeiture of $437 per month for 1 month, restriction and extra duty for 30 days, reduction to SR. Forfeiture and reduction suspended for 6 months. No indication of appeal in the record.

960411:  Retention Warning: Advised of deficiency (Unauthorized absence and missing movement.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

960511:  Punishment of forfeiture of $437 per month for 1 month suspended for 6 months.
960530   Applicant to unauthorized absence. Intentions manifest to desert.

960629:  Applicant declared a deserter.

961125:  Applicant from unauthorized absence. Applicant surrendered.

961224:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 960530 to 961125 (179 days/surrendered).
         Award: Forfeiture of $490 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.

961230:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by unauthorized absence from 30 May 96 to 25 Nov 96, missing ship's movement, and misconduct due to a pattern of misconduct as evidenced by two NJP's during current enlistment.

961231:  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 unauthorized absence from 30 May 96 to 25 Nov 96, missing ship's movement, and misconduct due to pattern of misconduct as evidenced by two NJP's during current enlistment.
961231:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
970121:  Commander, Naval Base, San Diego directed the Applicant's discharge under other than honorable conditions by reason of misconduct - unauthorized absence.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 970124 under other than honorable conditions for misconduct due to being 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).

Issue 1: The Board’s charter limits its review to a determination on the propriety and equity of the discharge. The Applicant’s discharge was found to be proper and equitable as issued. Although the Applicant claims family responsibilities as the reason for his unauthorized absence, t he 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. There is no evidence in the official record to indicate that the Applicant requested either a humanitarian discharge or reassignment. 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.

 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 15560C), Change 14, effective
03 Oct 96 until 11 Dec 97, Article 3630605, 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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