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NAVY | DRB | 2003_Navy | ND03-00947
Original file (ND03-00947.rtf) Auto-classification: Denied


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

ex-RMSR, USN
Docket No. ND03-00947

Applicant’s Request
The application for discharge review was received on 20030507. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. 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 20040401. 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

 No issues were submitted by the Applicant.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     870921 - 880724  COG
         Active: USN                        880725 - 910409  HON

 Period of Service Under Review :
Date of Enlistment: 910410               Date of Discharge: 930910

 Length of Service (years, months, days):

         Active: 02 05 01
         Inactive: None

 Age at Entry: 20                          Years Contracted: 6

 Education Level: 12                        AFQT: 39

 Highest Rate: RM2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (2)    Behavior: 3.60 (2)                OTA: 4.00

 Military Decorations: None

 Unit/Campaign/Service Awards: BER, SSDR (2), SASM w/1 Bronze Star, NDSM

 Days of Unauthorized Absence: 163

 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 :

911212:  Retention Warning: Advised of deficiency (On 1600, 911203, with intent to deceive, attempted to check-in off leave illegally, called from Shreveport, LA. Attempts (NAVREGS) on 1600, 911203 without authority absent himself from unit, to wit: NATA Comms Fac Norfolk and did so remain so absent until on 2000, 911206. Absence without leave (NAVREGS).), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
920402:  NJP for violation of UCMJ, Article 86: Absence without leave (under 24 hours).
         Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 15 days, reduction to RM3. Reduction suspended for 6 months. No indication of appeal in the record.
920416:  Applicant to unauthorized absence 0730, 920416.

 920512:  Applicant from unauthorized absence 1445, 920512 (26 days/surrendered).
920526:  Applicant to unauthorized absence 0600, 920526.

920528:  Vacate suspended reduction to RM3 awarded at CO’s NJP dated 920402 due to continued misconduct.

920608:  Applicant from unauthorized absence 0800, 920608 (13 days/apprehended).

 920803:  Applicant to unauthorized absence 0545, 920803.

920904:  Applicant declared a deserter.

 921207   Applicant from unauthorized absence 1440, 921207 (124 days/apprehended).
921208:  Pretrial confinement.

930209:  Applicant from pretrial confinement.

 930210:  Special Court Martial:
         Charge I: violation of the UCMJ, Article 86 (6 specifications):
         Specification 1: Fail to go at the time prescribed to appointed place of duty on 1200, 920415, to wit: Restricted Men’s muster.
         Specification 2: Unauthorized absence from 920526 to 920607 (11 days).
         Specification 3: Fail to go at the time prescribed to appointed place of duty on 920624, to wit: Restricted Men’s muster.
         Specification 4: Unauthorized absence from 920706 to 920707 (1 day).
         Specification 5: Unauthorized absence from 920803 to 921028 (85 days).
         Specification 6: Unauthorized absence from 921029 to 921208 (39 days/ apprehended).
         Findings: to Charge I and specifications thereunder, guilty.
         Sentence: Confinement for 4 months, fined $2,000.00 and reduction to RMSR.
         CA 930511: Sentence approved and ordered executed.

930210:  Applicant to confinement.

930311:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
930311:  Applicant advised of 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.
930317:  Applicant from confinement.
930401:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

930730:  Chief of Naval Personnel 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 the commission of a serious offense.
930802:  Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
930805:  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 19930910 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).

 The Applicant did not introduce any decisional issues for the Board’s consideration. 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 a special court-martial conviction and award of nonjudicial punishment (NJP). The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls short of that required for a general (under honorable conditions) characterization of service. 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 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. 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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