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NAVY | DRB | 2003_Navy | ND03-00472
Original file (ND03-00472.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND03-00472

Applicant’s Request
The application for discharge review was received on 20030130. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing. The Applicant indicated that he would choose one on the service organizations to represent him, but he did not notify the Board which organization would represent him. The review was conduct without counsel.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031229. 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 stated

 Applicant’s issues, as stated on the application:

1. “I have attached a copy of the letter I sent to my Congressmen in VA and AK. The material in the letter basically sums up why they felt they had to dishonorably discharge me.
I do not have the finances to provide someone to represent me, so I will choose one of the service organizations to represent me free of charge as suggested.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Statement from Applicant, dated September 27, 2002 (2 copies)
Earnings statement, dated January 17, 2003
Two pages from Central Intelligence Agency web page

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     971220 - 980224  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 980225               Date of Discharge: 020510

 Length of Service (years, months, days):

         Active: 04 02 16
         Inactive: None

 Age at Entry: 17 Parental Consent       Years Contracted: 4 (12 months extension)

 Education Level: 9-                        AFQT: 49

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (1)    Behavior: 2.00 (1)                OTA: 2.67

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, AFEM, MUC, NATO Medal, BER

 Days of Unauthorized Absence: 60

 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 :

001012:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 2359, 000908 to 0930, 000909, violation of UCMJ, Article 107: False official statement.
         Award: Forfeiture of $630 per month for 1 month, restriction and extra duty for 30 days. No indication of appeal in the record.
001012:  Retention Warning: Advised of deficiency (Your misconduct included unauthorized absence from 2359, 000908 to 0930, 000909 and making a false official statement. Your misconduct was in violation of the UCMJ, Article 86 and 107, resulting in nonjudicial punishment held on 001012.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
010131:  Counseling: Advised of deficiency (AN D_ (Applicant) was instructed to work in the berthing repeatedly, and he never showed up, at morning muster today 010131 he was instructed by ABH1 J_ to go to the berthing. He did not comply. He was then instructed again by ABH2 R_ and he did not comply.).

010201:  Counseling: Advised of deficiency (On 010131 AN D_ (Applicant) was instructed to work in the berthing. AN D_ (Applicant) never reported to the berthing P.O. When I asked AN D_ (Applicant) where he was he said he walked around the ship all day. ABH2 R_ and ABH3 L_ looked for AN D_ (Applicant) the whole day and never found him.). Applicant refused to sign.

010205:  Counseling: Advised of deficiency (Assigned to the working party 010205, he was personally escorted by ABH2 R_. Once Petty Officer R_ departed the hanger, AA D_ (Applicant) intentionally failed to submit his name to the muster P.O. and left the working party and was not seen since 0900 the morning of the 5 th of Feb until 0700 on the 6 th of Feb. This is AA D’s (Applicant’s) second documentation of the same offense.).

010316:  Counseling: Advised of deficiency (Unauthorized absence from duty from 010315 to 0530, 010316.).

010720:  Counseling: Advised of deficiency (Unauthorized absence from appointed place of duty.).

010813:  Counseling: Advised of deficiency (Military bearing and military bearing.).

010814:  Counseling: Advised of deficiency (Disobeying a lawful order.).

010829:  Counseling: Advised of deficiency (Unauthorized absence from appointed place of duty).

010921:  Counseling: Advised of deficiency (Serious nature of missing duty).

011030:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 1200, 010911 to 0700, 010915 (3 days/surrendered).
         Award: Forfeiture of $691 per month for 2 months, restriction and extra duty for 8 days. No indication of appeal in the record.
020128:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification I: Unauthorized absence from 0700, 011206 to 011208 (2 days).
         Specification II: Unauthorized absence from 0700, 011209 to 011216 (7 days).
         Specification III: Unauthorized absence from 0700, 020114 to 020121 (7 day).
         Specification IV: Unauthorized absence from 0700, 020123 to 020124 (1 day)
         Finding: to Charge I , III, and IV and the specifications thereunder, guilty. To Charge II and specification thereunder, not guilty.
         Sentence: Forfeiture of $694.00, confinement for 30 days, reduced to AR.
         CA action 020205: Sentence approved and ordered executed.

020128:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to a pattern of misconduct.
020128:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

020325:  Applicant declared a deserter.

020415:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence from 0700, 020225 to 020412 (47 days).
         Finding: to Charge I and the specification thereunder, guilty.
         Sentence: Forfeiture of $736.00, confinement for 30 days.
         CA action 020416: Sentence approved and ordered executed.

020415:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense.

 Partial discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020510 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).

 Issue 1: A characterization of service of under other than honorable conditions is warranted when the member’s conduct constitutes a significant departure from that expected of a Sailor. The Applicant’s service was marred by award of non-judicial punishment (NJP) and two summary court-martial convictions. The Applicant was found guilty of unauthorized absence in excess of thirty days, and making a false official statement. The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls short of that required for an honorable characterization of service. An upgrade to honorable would be inappropriate. Relief 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 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, 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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