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NAVY | DRB | 2003_Navy | ND03-00993
Original file (ND03-00993.rtf) Auto-classification: Denied


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

, ex-FR, USN
Docket No. ND03-00993

Applicant’s Request
The application for discharge review was received on 20030521. 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 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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“1. I was a young person with a lot of issues. I went U.A. from my unit because I wanted to be near my girlfriend at the time (stupid) and turned myself in and ____ returned to my unit placed in the brig for 55 days. Upon release, I was in a TPU unit. I was trying to stay in the Navy but took the discharge because my girlfriend (now ex-girlfriend) asked me to come home. I wish I never got out.”
Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Fax Cover Sheet
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     900530 - 900807  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 900808               Date of Discharge: 911202

 Length of Service (years, months, days):

         Active: 01 00 06
         Inactive: None

 Age at Entry: 24                          Years Contracted: 4

Education Level: 13                        AFQT: 93

 Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.00 (2)    Behavior: 1.00 (2)                OTA : 2.00

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 52

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

900809:  You are being retained in the Naval Service, despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your pre-service civil involvement:
         Shoplifting – Age 12, San Antonio, TX, 1976 Released to parents.

910114:  Disenrolled from the Nuclear Power Training Program for academic failure.

910424:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a manifest deserter on 910424 due to packing all personal effects on date of departure and after calling member at home stated that he was not returning. Member has been an unauthorized absentee since 1530, 910415 from ARD Five Waterford, NLON, CT.

910610:  Report of Return of Deserter. Applicant apprehended by civil authorities on 910603 (1940) at Columbus, OH. Returned to military control 910604 (1250). Delivered to ARD Five on 910605.

910802:  Special Court Martial
         Charge I: violation of the UCMJ, Article 85: Desertion from 910415 to 910603 (49 days/S). Charge II: violation of the UCMJ, Article 86: Unauthorized absence 1500 910412, to 0700, 910415 (3daysS).
         Findings: to Charge I and II, and the specifications thereunder, guilty.
         Sentence: Confinement for 6 months, forfeiture of $500.00 pay per month for 6 months, reduction to E-1.
         CA 911024: Sentence approved and ordered executed.
910813:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by your conviction at a Special Courts Martial on 2 August 1991.
910813:  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.
910816:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by your conviction at a Special Courts Martial on 2 August 1991.

911105:  ASN (M&RA) approved Applicant’s discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

911120:  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 19911202 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: 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 that his 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. 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), effective 15 Aug 91 until
04 Mar 93, 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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