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NAVY | DRB | 2003_Navy | ND03-00106
Original file (ND03-00106.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND03-00106

Applicant’s Request
The application for discharge review, received 20021024, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a documentary record discharge review. The Applicant listed the Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20030912. 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. I would like a second chance to serve my country because I have finally realized I was wrong for what I did. The reason I was trying to get out from the military before because I was still young and immature. Three months after I came to the United States I have no choice but to join in the military service immediately and without any experience in the outside world. As people say “Experience is the key for Success” and I presumed. And at that time I was still trying to adjust myself to new environment. It was really hard for me this situation until now I didn’t really know how hard the outside civilian world finding a more secured job is not as easy as in the military that’s what I thought. I am not saying military is easy but of course I need to sacrifice what I am saying is you and your family is protected by all the benefits from the government but you are not just doing this for your family you also pledge to serve your country especially for those who died during 9-11 tragedy. And it isn’t just because I realize but I also to promised myself that I can do better than before. I am so grateful because I still have friends from the Navy who always remind me they were just like me when I started to join “So Help me God”.

 2. Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application. His records were reviewed on 2/12/02 and the following comments are hereby submitted.

We concur with the Applicant’s contention that his under other than honorable discharge be changed.

We refer this case to the Board for their careful and compassionate consideration and request the Applicant's discharge be reviewed for upgrade to Honorable.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Character reference, dated September 19, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR(DEP)               19990527 – 19990531               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19990601             Date of Discharge: 20001109

 Length of Service (years, months, days):

         Active: 01 05 09
         Inactive: None

 Age at Entry: 19                                   Years Contracted: 4

 Education Level: 12                                 AFQT: 32

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                                    Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 43

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605). [Note BUPERSINST 1900.8 list the authority as 3630600 instead of 3630605]

 Chronological Listing of Significant Service Events :

000725:  Special Court Martial:
         Charge I: violation of the UCMJ, Article 86:
         Specification 1: Unauthorized absence from 000321 to 000323 (2 days).
         Specification 2: Unauthorized absence from 000503 to 000614 (41 days/apprehended).
         Charge II: violation of the UCMJ, Article 87:
         Specification: Miss movement on 000321.
         Findings: to Charge I and II and specifications thereunder, guilty.
         Sentence: Confinement for 69 days, forfeiture of $600 per month for 3 months, reduction to SR.
         CA Not found in service record.

000928:  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).
000928:  Applicant advised of rights and having elected not to consult certified under UCMJ Article 27B, elected to waive all rights.
000929:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of serious offense.

001018:  Chief of Naval Personal 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 to

001027:  Assistant Secretary of the Navy approved recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense

001102:  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 20001109 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 he may feel youth and immaturity were contributing factors, they do not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service. His service record is marred by a court-martial conviction for unauthorized absence in excess of thirty days thus substantiating the misconduct . 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. For the Applicant’s edification, Sailors with similar offenses normally receive a discharge characterization of under other than honorable conditions.

Concerning reenlistment, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done during the processing of a formal application for enlistment through a recruiter. Relief is therefore denied.

 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 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.

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 30, effective
30 Aug 00 until 24 Jan 01, 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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