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NAVY | DRB | 2003_Navy | ND03-00914
Original file (ND03-00914.rtf) Auto-classification: Denied


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

ex-AMSAN, USN
Docket No. ND03-00914

Applicant’s Request
The application for discharge review was received on 20030430. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040408. 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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“1. The discharge I received was improper as it was based on violation of Uniform Code of Military Justice Article 85, Desertion. It is felt that a charge of Desertion was not justifiable as I voluntarily contacted and conveyed to my Command Legal Officer my intention to return to duty via phone within the first 48 hours of absence, absence was for a duration under 30 days time (see document 1), and I voluntarily returned to my place of active duty without further incident. While readily admit guilt to a violation of Article 86 of the Uniform Code of Military Justice, Absence without leave; this single instance in 18 months of prior service did not warrant discharge.”

“2. I have been and continue to be a good citizen of the United States of America without any civil or legal altercations in the eight years following my discharge. I feel this better displays my conduct and sense of morality far more than the circumstances surrounding my discharge (see document 2).”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from United States Senator C___ J. D___ dated February 10, 1995
Desertion Clarification Document
Employment Reference Letter dated April 22, 2003
Copy of DD Form 214
Copy of Microsoft Certified Professional Transcript dated August 22, 2001 (2 pages)
Copies of Local Criminal Record Check dated October 8, 2001 (2)
Copies of Criminal Record Check results (2 pages)
Copy of Background Check Letter dated November 26, 2001
Copy of Background Check results

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     910927 - 920224  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 920225               Date of Discharge: 950517

 Length of Service (years, months, days):

         Active: 03 02 23
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 94

 Highest Rate: ET3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.08 (5)    Behavior: 3.08 (5)                OTA: 3.08

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, M14 Sharpshooter

 Days of Unauthorized Absence: 26

 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 :

920615:  Retention Warning: Advised of deficiency (Inability to be on time at your designated place of duty) notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930223:  Psychiatric Evaluation: Member diagnosed with adjustment disorder with mixed emotional features, marital problems, and a personality disorder NOS. SM is not mentally ill. He evidenced adjustment disorder secondary to marital problems which the patient is planning to resolve. He did well during his hospitalization and treatment, developed a much better insight and understanding of himself and ways to handle his problems. He continued to express strong desire and motivation to remain in training and military service and continued outpatient therapy. SM is therefore, strongly recommended to return to training and remain in the military service. SM is competent and responsible for his behavior. He will continue to be at the Mental Health Clinic for an outpatient follow up therapy once a week every Wednesday at 1300H. Starting March 3, 1993.

930317:  Disenrolled from the Nuclear Power Training Program for demonstrated unreliability. Reason: Personality Disorder.

930610:  NJP for violation of UCMJ, Article 86: (4 Specs), Spec 1: UA from 0700-0900, 930507, Spec 2: UA from 0700-0724, 930511, Spec 3: UA from 0700-0915, 930513, Spec 4: UA from 0345, 930524 until 0950, 930525 (1 day).
         Award: Restriction and extra duty for 15 days, reduction to E-3 (suspended for 6 months). No indication of appeal in the record.

930907:  Retention Warning: Advised of deficiency (Article 86 (4 Specs), UA) notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

931123:  Retention Warning: Advised of deficiency (Personality disorder as evidenced by self-mutilative behavior manifested by cigarette burns on left wrist), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

950120:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 950120 having been an unauthorized absentee since 950116 from VF-101, NAS OCEANA, Virginia Beach. Member left notes threatening suicide and cleaned out his barracks room.

950228:  NJP for violation of UCMJ, Article 85: Desertion 950116-950210 (25 days).
         Award: Forfeiture of $545.70 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.
950307:  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 convenience of the government on the basis of personality disorder as evidenced by all punishments under the UCMJ in your current enlistment and diagnosis of a personality disorder by a military medical authority.
950307:  Applicant advised of his 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.
950424:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and convenience of the government on the basis of personality disorder.

950503:  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 19950517 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: In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable . A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor. The Applicant’s service record is marred by award of non-judicial punishment (NJP) on two separate occasions for unauthorized absence and desertion. The Manual for Courts-Martial defines desertion as a Sailor who demonstrates an intent to remain absent from his place of duty permanently. The Applicant demonstrated such intent by leaving suicide notes and cleaning out his barracks room. The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service. An upgrade to general (under honorable conditions) would be inappropriate. Relief denied.

 Issue 2: 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. At this time, the Board determined that the documentation submitted by the Applicant does not mitigate his misconduct while on active duty. Relief denied.

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 9, effective
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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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