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NAVY | DRB | 2002_Navy | ND02-01300
Original file (ND02-01300.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND02-01300

Applicant’s Request
The application for discharge review, received 20020910, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region. The Applicant listed the American Legion as the representative on the DD Form 293. The Applicant failed to respond by the deadline date to a letter requiring the Applicant to notify the Naval Discharge Review Board of intention to be present for the requested personal appearance hearing. Therefore, a documentary review was conducted. Applicant is no longer eligible for review by this Board.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20030812. 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 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:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):

          Inactive: USNR (DEP)     860313 - 860710  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 860711                        Date of Discharge: 871113

 Length of Service (years, months, days):

         Active: 01 04 03
         Inactive: None

 Age at Entry: 17 Parental Consent                Years Contracted: 4

 Education Level: 12                                 AFQT: 48

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.00 (1)    Behavior: 2.00 (1)                OTA: 2.60

Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 94

 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 :

861023:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0001, 861012 to 1420, 861014 (2 days/surrendered), violation of UCMJ, Article 92: Fail to obey a lawful order.
         Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 5 days. No indication of appeal in the record.
861023:  Retention Warning: Advised of deficiency (Unauthorized absence and failure to obey lawful order.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
861030:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0345 –0414, 861020.
         Award: Forfeiture of $149 per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.
861211:  NJP for violation of UCMJ, Article 86: Absent from appointed place of duty on 861122, violation of UCMJ, Article 92: Failed to obey a lawful order on 861122.
         Award: Forfeiture of $319 per month for 1 month, restriction and extra duty for 20 days. Restriction and extra duty for 10 days suspended for 6 months. No indication of appeal in the record.

870625:  Applicant to unauthorized absence at 0600.
870629:  Applicant missed movement.

870718:  Applicant surrendered onboard USS Prairie (AD 15) at 1724.

870725:  Applicant to unauthorized absence 0700, 870725.

870827:  Applicant declared a deserter.

871007:  Aplicant surrendered onboard USS Prairie (AD 15) at 2205.

 871022:  NJP for violation of UCMJ, Article 86 (5 specs): (1) Unauthorized absence from 0600, 870625 to 1724, 870718 (23 days/surrendered), (2) Unauthorized absence from 870728 to 2205, 871007 (69 days/surrendered), (3-5) Unauthorized absence from appointed place of duty. CO’s message has 3 specs of failure to go and 2 periods of unauthorized absence.
         Award: Forfeiture of $329 per month for 2 months, restriction and extra duty for 45 days, reduction to SR. Forfeiture suspended for 6 months. No indication of appeal in the record.
871022:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. [Extracted from Commanding Officer’s message dated 871029.]
871022:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights. [Extracted from Commanding Officer’s message dated 871029.]
871029:  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): SR (Applicant) is being processed for separation due to commission of a serious offense. SR (Applicant) was UA from 25Jun-18Jul87. Before NJP could be imposed for the first period of UA, he commenced a second period of UA on 27Jul87 which terminated on 07Oct87. SR (Applicant) is considered to have no potential for future useful service and is a serious threat to good order and discipline onboard USS PRAIRIE. He is recommended for discharge soonest with characterization of discharge as other than honorable.

871104:  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 19871113 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 the Applicant’s issue 1, (Equity Issue; as it pertains to post-service conduct) the Board determined that this issue has no merit. The Applicant failed to provide any documentary evidence to support this issue.

 The following is provided for the edification of the Applicant. Normally, to permit relief, an error or inequity must have been found to have existed during the period of enlistment in question. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there 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 the civilian life subsequent to leaving the service. Outstanding post-service conduct, 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 can be considered. Examples include documentation such as educational pursuits, verifiable employment record(s), documentation of community service, certification of non-involvement with civil authorities, and credible evidence of substance free lifestyle (if appropriate). At this time, the applicant has not provided any documentation for the Board to consider. Therefore, no relief will be granted.
The applicant is reminded that he is ineligible for further review by this Board. The applicant can petition the Board for Correction of Naval Records, using the enclosed DD Form 149.
Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A), effective 15 Jun 87 until
10 Jan 89, 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 86 (for unauthorized absence for a period in excess of 30 days) and Article 92 (failure to obey a lawful order), 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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