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NAVY | DRB | 2003_Navy | ND03-00071
Original file (ND03-00071.rtf) Auto-classification: Denied


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

ex-FCSN, USN
Docket No. ND03-00071

Applicant’s Request
The application for discharge review, received 20021010, 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 from the Veterans of Foreign Wars

Decision

A documentary discharge review was conducted in Washington, D.C. on 20030828. 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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted
1. I believe my discharge to be unfair based upon my personal situation at the time with my ex-wife and son. My, enlisted performance evals, will show what type of Naval career I was looking for. Until such time as I returned from the Operation Desert Storm, to find a major personal changes at home. My personal attitude and character had gone a major change. My ex-wife hid my son a continued to hide him from myself with no help from the military or local law enforcement agencies. This is why I took the actions I did. My military record will show myself being hospitalized for this incident. Therefore, I would hope you would take into consideration all the information in my military jacket and possibly change my discharge to Honorable. My military career, short as it may be. Should give enough credence to warrant a change. Thank you in advance.

Submitted by VFW:

2. We concur with the applicant’s contention and request to have his under other than honorable discharge upgraded. We refer this case to the Board for their careful and compassionate consideration and request the applicant’s discharge be reviewed for upgrading to Honorable.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
 Copies from his service and medical record (17 pages)
Statement from applicant of his post service education and employment (3 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     890523 - 890827  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 890828               Date of Discharge: 931201

 Length of Service (years, months, days):

         Active: 04 03 03 (Doesn’t exclude lost time.)
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 53

 Highest Rate: FC3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.9 (2)     Behavior: 3.8 (3)                 OTA: 3.8

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, SW ASM Kuwait Liberation Medal

 Days of Unauthorized Absence: 103

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

921117:  NJP for violation of UCMJ, Article 86: Absence without leave, violation of UCMJ Article 107: False official statements. [Extracted from CO, USS JOUETT’s Msg of 22NOV93]
 Award: Restriction and extra duty for 7 days, reduction to E-3. (Reduction in rate suspended for 3 months). No indication of appeal in the record.
930723:  UA –USS JOUETT (CG 29) Located at Naval Station, San Diego, CA at 0645 23JUL1993.

930822:  Member’s intentions to desert manifest. Declared deserter from USS JOUETT this date.

931105:  Apprehended by civilian authorities this date.

931105:  Apprehended by civil authorities at 0800, 05NOV93 at Union City, CA. To military jurisdiction at 1215 05NOV93 at Navy absentee collection unit, San Diego. Delivered to parent command on 06NOV93.

931112:  NJP for violation of UCMJ, Article 86 Absence without leave, violation of UCMJ, Article 87: missing movement.
Award Reduction to pay grade E-3, 45 days extra duties (suspended for 6 months), and forfeiture of $607.00 pay per month pay for 2 months.
931116:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
931116:  Applicant advised of his rights and having elected not to consulted, with counsel certified under UCMJ Article 27B, waive all rights except the right to obtain copies of the documents used to support the basis for the separation. Applicant did not object to separation.
931122:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense, when his request for a voluntary early separation was denied for the second time by BUPERS last summer Fire Controlman Seaman S--- went UA even though he knew the ship was getting underway in the near future. Member was UA for 105 days, member was returned to military custody following service of an arrest warrant. He has no potential for further service.

931129:  BUPERS 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 19931201 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, the Board determined this issue has no merit. The Applicant states his personal situation required that he commit the misconduct documented in his service record.

The Board reviewed the Applicant’s service record as well as his medical record entries describing the personal issues that occurred during the period of time under review. Although the applicant may have been under a significant amount of stress, there are no indications that he utilized his chain of command to assist in resolving his personal problems. The Applicant’s misconduct not only impacted his Navy career, it impacted the careers of his shipmates who were required to perform the Applicant’s duties in addition to their own. Missing ship’s movement is a serious offense as well as unauthorized absence more than 30 consecutive days. The Applicant failed to provide any documentation that shows remorse for his actions or to demonstrate that his character was misrepresented by his misconduct while serving his country. Relief based on this issue is denied.

In the Applicant’s issue 2, VFW request that the Applicant’s discharge be reviewed for upgrade.

The Board reviewed the Applicant’s case for upgrade and determined that the discharge was proper and equitable. Relief denied.

 The following is provided for the edification of the Applicant. Normally, to permit relief, an error of propriety or equity must have occurred during the period of enlistment in question. No errors or inequities were discovered during a review of the Applicant’s enlistment and subsequent discharge. 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 of documentation to provide to the Board for consideration include verification of educational pursuits, verifiable employment record(s), documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle (if applicable). At this time, the applicant has not provided sufficient documentation for the Board to consider. Therefore, no relief will be granted.
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 5, effective
05 Mar 93 until 21 Jul 94, Article 3630600, 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 86 (unauthorized absence for a period in excess of 30 days), Article 87 (missing ship’s movement), and Article 107 (false official statement), 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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