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NAVY | DRB | 2003_Navy | ND03-01079
Original file (ND03-01079.rtf) Auto-classification: Denied


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

ex-AMEAA, USN
Docket No. ND03-01079

Applicant’s Request
The application for discharge review was received on 20030604. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record 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 20040514. 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. “My discharge was inequitable because it was based on an incident that was minor in nature and compared to other incidents that were occuring with other members at that time.

2. My discharge was inequitable because I had almost completed my 4 year enlistment at the time the incident occured.

3. Please consider changing my discharge to Honorable.

4. My discharge was improper because the incident that occurred that caused me to miss work was related to family problems with my wife and 1 year old daughter at the time. My command was very unwilling to have any flexibility during this time. My time lost was very minimal and I’ve never had any criminal activity. I received good performance reviews and has completed almost 3 ½ years of my 4 year enlistment.

5. I believe my misconduct could have been handeled in a different way. Again, please change my discharge to Honerable. Thank you for your consideration.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     861117 - 870722  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 870723               Date of Discharge: 901207

 Length of Service (years, months, days):

         Active: 03 04 15         Does not exclude lost time
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 48

 Highest Rate: AMEAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (5)    Behavior: 3.24 (5)                OTA : 3.40

 Military Decorations: None

 Unit/Campaign/Service Awards: AFEM, SSDR

 Days of Unauthorized Absence: 5

 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 :

890509:  Applicant to unauthorized absence 1235, 890509.

890511:  Applicant from unauthorized absence 1000, 890511 (2 days/surrendered).

890513:  Applicant returned to USS AMERICA (CV-66) at 1400, 890513.

 890624:  NJP for violation of UCMJ, Article 86 (2 specs): Unauthorized absence, violation of UCMJ, Article 87: Missing movement on 890511.
         Date of offenses: 890508, 890509, 890511.
         Award: Forfeiture of $391 per month for 1 month, restriction for 60 days, reduction to AMEAA. No indication of appeal in the record.
890624:  Retention Warning: Advised of deficiency (One NJP conviction for VUCMJ Article 86 (2 specs): Unauthorized absence; VUCMJ Article 87: Missing ship’s movement.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
         
901023:  NJP for violation of UCMJ, Article 86: Unauthorized absence on 901006 to 901009 (3 days), violation of UCMJ, Article 87: Missing movement on 901006.
         Award: Forfeiture of $462 per month for 2 months, restriction for 60 days, reduction to AMEAA. No indication of appeal in the record.
901128:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
901128:  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.
901129:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

901203:  CNMPC 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 19901207 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).

Issues 1, 2, and 3. The Applicant states his discharge was based on one isolated incident within his four year enlistment. When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as other than honorable is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. The applicant’s service was marred by the award of nonjudicial punishment (NJP) on two occasions for violations of the Uniform Code of Military Justice (UCMJ). The applicant’s misconduct included unauthorized absence and missing movement. The applicant’s conduct and proficiency markings, which form the primary basis for determining the character of his service, reflect his misconduct, and fall below that required for an honorable characterization of service. An upgrade to honorable would be inappropriate. Relief is therefore denied. Relief denied.

 Issues 4 and 5. The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted. There is no evidence of impropriety or inequity in the Applicant’s discharge. The Applicant’s misconduct is clearly documented. Therefore, relief is denied.

The following is provided for the edification of the applicant. 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 naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.

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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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 15560A), Change 8, effective
21 Aug 89 until 14 Aug 91, 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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