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NAVY | DRB | 2003_Navy | ND03-00040
Original file (ND03-00040.rtf) Auto-classification: Denied


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

ex-FA, USN
Docket No. ND03-00040

Applicant’s Request
The application for discharge review, received 20021004, 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. Subsequent to the application, the Applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031003. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. 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 1910-142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. “(Equity Issue) This former member proffers that her UOTHC discharge is too harsh because her unauthorized absence was due to her mother having a stroke and there was no else to care for her children.”

2. “(Equity Issue) This former member 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:
Statement in support of claim, dated September 16, 2002
Statement in support of claim from Applicant’s mother, dated September 10, 2002
Police record check, dated September 13, 2002
Statement in support of claim, dated September 4, 2002
Statement in support of claim, dated September 13, 2002
Statement in support of claim, dated September 10, 2002
Statement in support of claim from Applicant’s husband, dated September 8, 2002
Statement in support of claim, dated September 13, 2002
Statement in support of claim, dated September 15, 2002
Applicant’s DD Form 214
Evaluation report letter-extension, dated October 17, 1997
Evaluation Report and Counseling Record for February 7, 1997 to July 15, 1997, October 15, 1997 to January 15, 1998, July 16, 1998 to October 30 1998 (2)
Citation, dated October 1997 to September 1998

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR(DEP)               961010 - 961125  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 961126               Date of Discharge: 991221

 Length of Service (years, months, days):

         Active: 03 00 26         Does not exclude lost time
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 32/26

 Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (3)    Behavior: 3.00 (3)                OTA: 2.94

 Military Decorations: None

 Unit/Campaign/Service Awards: Letter of Commendation

 Days of Unauthorized Absence: 130

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).
Chronological Listing of Significant Service Events :

990426:  Applicant declared a deserter.

 990913:  Special Court Martial
         Charge I: violation of the UCMJ, Article 85:
         Specification: Desertion from 990405 to 990815 (130 days/apprehended).
         Charge II: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence from 990405 to 990815 (130 days/apprehended).
         Charge III: violation of the UCMJ, Article 87:
         Specification 1: Missing movement on 990405.
 Specification 2: Missing movement on 990618.
Specification 3: Missing movement on 990623.
Specification 4: Missing movement on 990706.
Specification 5: Missing movement on 990729.
Specification 6: Missing movement on 990806.
          Findings: to Charge II, and III and specifications thereunder, guilty. To Charge I, and III, specifications 2-6 thereunder, not guilty.
         Sentence: Confinement for 30 days, reduction to FA.
         CA 990913: Sentence approved and ordered executed.

990920:  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 absent without leave (30 days or more).
990920:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
990920:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to absent without leave (30 days or more).

991028:  Chief of Naval Personnel recommended to Assistant Secretary of the Navy (Manpower and Reserve Affairs), Applicant’s discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

991123:  Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved recommendation for discharge.

991203:  CNPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19991221 under other than honorable conditions for misconduct due to 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: Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the Applicant’s enlistment. While she may feel that her mother’s illness was a contributing factor, it does not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating she was unsuitable for further service. Her service record is marred by a court-martial conviction . It must be noted that most Sailors serve honorably and well and therefore earn honorable discharges. In fairness to those Sailors, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. An upgrade to honorable conditions would be inappropriate. Relief denied.

Issue 2: 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, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted. At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate her unauthorized absence while on active duty. Relief is not warranted.

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 18, effective
12 Dec 97 until 29 Mar 00, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B. 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.

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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