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NAVY | DRB | 2002_Navy | ND02-01040
Original file (ND02-01040.rtf) Auto-classification: Denied


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

ex-MM3, USN
Docket No. ND02-01040

Applicant’s Request
The application for discharge review, received 020722, 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030414. 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/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 3630650.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. To whom it may concern

I am writing this letter to request an upgrade of my DD-214 to better my life for my family, and me. I deeply apologize for my behavior. At the time, my father was on his death bed and I couldn't have a leave request approved. So I left on my own to see my father before he died. Again, I apologize for my behavior I would be greatful for an upgrade of my discharge paper so that I can better my future for me and my family also.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Pastor K_ F_
Copies of DD Form 214 (2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     920330 - 921220  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 921221               Date of Discharge: 970303

 Length of Service (years, months, days):

         Active: 04 02 13 Does not exclude lost time
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 35

 Highest Rate: MM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                  Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM, SSM, KLM (2)

 Days of Unauthorized Absence: 265

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 3630650.

 Chronological Listing of Significant Service Events :

940831:  NJP for violation of UCMJ, Article 86: On board USS JOHN F KENNEDY (CV-67), at on or about 2200, 940721, go from appointed place of duty, to wit: Duty section, violation of UCMJ, Article 92: At building 538, NAVSTA, Philadelphia, PA on or about 940721, dereliction of duty, negligently failed to refrain from consuming alcohol while in a duty status.
         Award: Forfeiture of $250.00 pay per month for 1 month, restriction and extra duty for 30 days, reduction in rate (suspended for 4 months). No indication of appeal in the record.
940902:  Retention Warning: Advised of deficiency (Misconduct as evidenced by Captain's Mast on 940831, for violation of the UCMJ, Article 86: On board USS JOHN F KENNEDY (CV-67), at or about 2200, 940721, go from appointed place of duty, to wit: Duty Section; Article 92: At Building 538, Naval Station, Philadelphia, Pennsylvania, on or about 940721, dereliction of duty, negligently failed to refrain from consuming alcohol while in a duty status. Should your misconduct continue, you will create an adverse pattern of misconduct), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

951027   Applicant reported UA from USS JOHN F KENNEDY . Intentions unknown.

951030   Applicant missed ship’s movement.

951102   Applicant’s absence reported in error. Applicant on board, in a duty status.

951107   Applicant reported UA from USS JOHN F KENNEDY . Intentions unknown.

951109   Applicant returned from UA status.

960406:  Applicant UA from TPU NAS JACKSONVILLE, FL at 0730, 960406.

960510:  Applicant surrendered at TPU NAS JACKSONVILLE, FL at 1030, 960510.

960518:  NJP held this date.
 [Extracted from Enlisted Performance Record].
960603:  Applicant UA from TPU JACKSONVILLE, FL at 0800.

960604:  Applicant declared a deserter at 0800.

970121:  Report of Return of Deserter. Applicant apprehended by Duval County Sheriff Department, Jacksonville, FL on 970118 (0430). Returned to military control TPU NAS JACKSONVILLE, FL 970119 (1419).
970212:  Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial. He consulted with counsel and was fully advised of the implications of his request. The Applicant stated he understood the elements of the offense(s) with which he was charged, and admitted he was guilty of all the charges preferred against him. Specifically, he admitted to violating UCMJ, Article: 86, unauthorized absence. The Applicant stated he was completely satisfied with the counsel he had received. The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.
         Note: If Applicant is an E-4 or above, statement must include a request to be administratively reduced to E-3. No documentation found in record and Applicant was not reduced in rank prior to separation.
         
970213:  The Commanding Officer, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 970303 under other than honorable conditions in lieu of a trial by court-martial (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

Issue 1: The NDRB has no authority to upgrade a discharge for the sole purpose of improving the opportunities for a better life as requested by the Applicant. Regulations limit the Board’s review to a consideration of the propriety and equity of a discharge. The Applicant’s discharge was proper and equitable and accurately reflects his service to his country. The Applicant’s summary of service clearly documents the reasons for the Applicant’s other than honorable characterization of service. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a sailor. T he Applicant’s conduct, which forms the primary basis for determining the character of service, reflects his disobedience of the orders and directives that regulate good order and discipline in the naval service, and falls far short of that required for an honorable characterization of service. Although the Applicant claims he went UA due to the pending death of his father, 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 under honorable conditions 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. After a complete review of the record, including the evidence submitted by the Applicant, the Board determined that the Applicant’s discharge was proper and equitable and that his evidence of post service accomplishments was found not to mitigate the misconduct for which he was discharged. 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 14, effective
03 Oct 96 until 11 Dec 97, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR SEPARATION IN LIEU OF TRIAL BY COURTMARTIAL.

B. A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article [e.g., 86, unauthorized absence for a period more than 30 days] upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-Martial].

C. 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.

D. 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.

E. 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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