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NAVY | DRB | 2003_Navy | ND03-00540
Original file (ND03-00540.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND03-00540

Applicant’s Request
The application for discharge review was received on 20030212. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions and the reason for the discharge be changed. The Applicant requests a documentary record discharge review. The Applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040114. 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 and narrative reason of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 3630650.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Applicant’s issues, as stated on the application:

1. “I served honorably for 2 years before I made the mistakes in May, Jun & July of 1997. The two incidents in May of 1997 were me being late for formation. I did come on in and worked those days. I had started drinking pretty heavy at this time and was too proud and young to ask for help. I was stressed out and left for home in Jun 1997. After clearing my head, I turned myself in ready to take responsibility for my mistake.
I have matured now and asked to serve my country again in the National Guard. A waiver was approved on Sep 8, 1999 and I have served outstanding since that time.
I have received the “Soldier of the Year” award and the Army Achievement Medal.
I have paid for my mistake with this blemish on my record for all of these years. I am determined to be the best soldier in my unit to overcome this stupid mistake that I made in the Navy. I have taken responsibility for my mistake and have overcome it.

Please change my character of service to General under Honorable conditions and please change the narrative reason for separation.”

Additional issues submitted by Applicant’s representative (American Legion):

 “2. (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:
Character reference, undated
Character reference, undated
Enlistment waiver
DD Form 214 from Department of the Army or Air Force National Guard
Applicant’s DD Form 214 (2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: ARNG   920505 – 950829  HON
         Active: None

 Period of Service Under Review :
Date of Enlistment: 950830               Date of Discharge: 970729

 Length of Service (years, months, days):

         Active: 01 11 00         Does not exclude lost time
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 45

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*                          Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 46

*No Marks Found in the service record

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 3630650.

 Chronological Listing of Significant Service Events :

961211:  NJP for violation of UCMJ, Article 92: Consuming alcohol 12 hours prior to a training day, violation of UCMJ, Article 134: Drunk and disorderly conduct, violation of UCMJ, Article 95 (2 specs): Resisted being apprehended by GLPD officers and NCPD police officers.
         Award: Forfeiture of $437 per month for 1 month, restriction and extra duty for 30 days. Restriction and extra duty suspended for 6 months. No indication of appeal in the record.
961211:  Retention Warning: Advised of deficiency (Underage drinking, drunk and disorderly and resist being apprehended), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
970127:  Applicant to unauthorized absence 0700, 970127.

970130:  Applicant from unauthorized absence 0700, 970130 (3 days/surrendered).

970415:  Retention Warning: Advised of deficiency (Misconduct due to commission of a serious offense and alcohol abuse rehabilitation failure), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
970505:  Applicant to unauthorized absence 0600, 970505.

970507:  Applicant from unauthorized absence 1430, 970507 (2 days/surrendered).

970513:  Applicant to unauthorized absence 0600, 970513.

970515:  Applicant from unauthorized absence 0600, 970515 (2 days/surrendered).

970516:  Applicant to unauthorized absence 0700, 970516.

970521:  Applicant from unauthorized absence 2145, 970521 (5 days/surrendered).

970603:  Applicant to unauthorized absence 0700, 970603.

970703:  Applicant declared a deserter.

970707:  Applicant from unauthorized absence 1230, 970707 (34 days/surrendered).

970729:  DD Form 214: Applicant discharged under other than honorable conditions in lieu of a trial by court-martial, authority: NAVMILPERSMAN, Article 3630650.

Separation package missing from service record

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970729 under other than honorable conditions in lieu of a trial by court-martial (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

Issue 1. The Applicant requested discharge for the good of the service to escape trial by court-martial. No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation. The Board presumes that in the request the Applicant admitted guilt to committing the offenses and that he certified a complete understanding of the negative consequences of his actions and that characterization of service would be under other than honorable conditions. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

Issue 2. The Applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity occurred during the Applicant’s enlistment. Additionally, 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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct. The Applicant’s evidence of post-service conduct was found not to mitigate the offenses for which he was discharged. Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. 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 14, effective
03 Oct 96 until 11 Dec 97, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR SEPARATION IN LIEU OF TRIAL BY COURTMARTIAL.

B. A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article 86, unauthorized absence for a period more than 30 days, upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-Martial.

C. 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.

D. 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.

E. 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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