Search Decisions

Decision Text

NAVY | DRB | 2003_Navy | ND03-01450
Original file (ND03-01450.rtf) Auto-classification: Denied


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

ex-AOAA, USN
Docket No. ND03-01450

Applicant’s Request
The application for discharge review was received on 20030905. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing. The Applicant did not list any representative on the DD FORM 293. Subsequent to the applicant, the Applicant obtained representation by the Disabled American Veterans.
Decision

A documentary discharge review was conducted in Washington, D.C. on 20040812. 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. “Dear Members of the board. I would to say that I’m guilty of the charge of Unauthorized absence, U.A. This is the reason I receive an Other Than Honorable Discharge. My Absence from my Command was due to family Medical issues. A member of my family suffers from a irregular Heart Beat which he occasionally is emitted in the hospital. I had requested Leave or emergency Leave which was taken from me for these occurances. Further-more, my Division Head was Alerted by myself of what was going on with me, as a result he did nothing to help me. I’ve also requested a change of command due to the fact the my command did nothing to help a fellow Sailor. Again I’m fully responsible for my actions but, I’m asking you to consider The reasons why. Family! Without me the U.S. Navy can and will go on but, Family cannot. I had an obligation to the service but, I also have one with my Family. To say that I’m a deserter or a slouch on the Job is false. I have statements from employers that say otherwise. My be I handle my problem the wrong way or have talk to the wrong people in my unit but, to say that I’m a deserter or a Slacker as my Evals state is wrong! I’m asking you to consider and upgrade my discharge to Honorable discharge due to USS Theodore Roosevelt’s Weapons Dept Lack of interest in me to help me! I Further State tat I took every measure to stay with the service from Duty Station transfer to branch change. To this Day I still have the desire to serve my country with Honor!”

 Issues submitted by Applicant’s representative the Disabled American Veterans :
1. “ Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Other Than Honorable (OTH) Discharge to that of Honorable.

The FSM served on active service from February 7 1990 to February 5, 1993 at which time he was discharged due to Misconduct – Commission of a Serious Offense.

The FSM contends the current discharge is improper because he sought assistance from his Command for issues with his family that he felt needed to addressed by him, which required leave, the later of which once denied by his Command, he felt left him no choice but to go absent without leave (AWOL).

As the representative, we direct the Board members to the additional character reference statements that attest to the good character and responsible mannerism shown by the FSM since his discharge. Also ask that attention be given to the statement from local law enforcement that reflect the FSM has been in no trouble since his discharge.

This creates a need for a review of the application of the standard, for the Board to determine that the applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 (c), Par. (f) (1).

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant.

 Respectfully,

K_ L. G_
National Service Officer ”

 Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214.
Applicant letter detailing representation by Disabled American Veterans of 2 April
2004
Applicant letter detailing change of address, undated
Character reference from S_ A. S_ dated 11 November 2002
Character reference from Applicant’s sister, C_ S_ dated 15 November 2002
Character reference from Applicant’s employer, D_ B_ dated 14 August 2003
Character reference from Applicant’s employer M_ M_ dated 15 August 2003
 Statement of non-involvement with Civilian Authorities, Orlando Police Department dated 15 August 2003
Certificate of Admission to Embry-Riddle Aeronautical University by applicant dated January 1995.
Applicant letter submitted with copy of DD Form 214, undated.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     900131 - 900206  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 900207               Date of Discharge: 930205

 Length of Service (years, months, days):

         Active: 02 06 23
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 42

 Highest Rate: AOAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (2)    Behavior: 2.50 (2)                OTA : 2.90

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, Southwest Asia Service Medal

 Days of Unauthorized Absence: 151

 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 :

900406:  Retention Warning: Advised of deficiency (defective enlistment, failure to disclose preservice civil involvement), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.


900617:  Applicant commenced a period of UA. Terminated on 900619.

911216:  Applicant commenced a period of UA. Terminated on 920402.

920505:  Special Court Martial [trial dates 920505]
         Charge: violation of the UCMJ, Article 86,
         Specification: On or about December 16, 1991 until on or about April 2, 1992, without authority, absent himself from his unit.
         Findings: to the Charge and the sole specification thereunder, guilty, excepting the words “He was apprehended.” To the excepted words, not guilty, to the Charge as amended, guilty.
         Sentence: forfeiture of $300.00 per month for 3 months, confinement for 90 days and reduction to E-1.
         CA 920614: Sentence approved and ordered executed, all confinement in excess of 40 days suspended for 12 months pursuant to terms of PTA.

 920505:  Applicant commenced a period of UA. Terminated on 920604.

 920612:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
920628:  Applicant commenced a period of UA. Terminated on 920711
         
000000:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
921119:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

921207:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

930115:  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 19930205 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, a procedural error or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no such errors after a review of Applicant’s case. 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. As of this time, the Applicant has not provided sufficient documentation to mitigate his misconduct. Relief denied.

The Applicant further claims inequity in that his command did not allow him the leave he needed to attend to the illness of a family member. While Applicant’s intent may be mitigating, it does not relieve him of liability for his misconduct and resulting characterization of discharge. Furthermore, Applicant has not provided sufficient documentation to establish to this Board’s satisfaction that his command indeed treated him inequitably. Unless and until Applicant can establish inequitable treatment at the time of his discharge, this Board will offer no relief. As such, 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 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 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      


Similar Decisions

  • NAVY | DRB | 1999_Navy | ND99-00942

    Original file (ND99-00942.rtf) Auto-classification: Denied

    J_ M L_ said, "But (applicant) is now a very mature, responsible, loyal and respectable person. And given the great honor of being published in Outstanding Poets of 1998.I went back to school in 1997 at Wes Watkins Technology Center to complete my automotive technology course. The FSM has also received recognition and awards for outstanding performance while attending school.

  • NAVY | DRB | 2002_Navy | ND02-00841

    Original file (ND02-00841.rtf) Auto-classification: Denied

    ND02-00841 Applicant’s Request The application for discharge review, received 020529, requested that the characterization of service on the discharge be changed to honorable. I was told by navy legal office on Guam that an admin board was to be pick at random, but the Capt pick the board himself, I was also told that one member of my board was suppose to be from another command so as to be impartial this was not done everyone on my board was from my command. The possibility that one of his...

  • NAVY | DRB | 2003_Navy | ND03-00988

    Original file (ND03-00988.rtf) Auto-classification: Denied

    ND03-00988 Applicant’s Request The application for discharge review was received on 20030527. According to S_’s statement, my statement, and the memorandum that was given to the defense counsel at that time,should prove that S_ was at least 12yrs of age and that I had reason to believe that she and her friends were 16yrs of age or older. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper...

  • NAVY | DRB | 2002_Navy | ND02-00716

    Original file (ND02-00716.rtf) Auto-classification: Denied

    ND02-00716 Applicant’s Request The application for discharge review, received 020425, requested that the characterization of service on the discharge be changed to honorable. I told her that I had my entire leave papers because I had to have Limited Duty at PSD sign me out for leave because there was no one at the command that had the authority to do so. (FSM) DD Form 293 Application for the Naval Discharge Review Board of Discharge or Dismissal from the Armed Forces of the United States...

  • NAVY | DRB | 2004_Navy | ND04-00288

    Original file (ND04-00288.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to honorable. They stated that they felt the harassment charges were to serious to dismiss based on the allegations but they didn’t feel like it was serious enough to take to court martial, and I don’t feel that it was fair and just. I felt that the entire time this situation was going on chiefs.

  • NAVY | DRB | 2003_Navy | ND03-01411

    Original file (ND03-01411.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.Under the premises of equitable relief,...

  • NAVY | DRB | 2003_Navy | ND03-01107

    Original file (ND03-01107.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to honorable. On August 19, 2000 I went on a 6 month deployment with Vaq 139 and had to see my wife’s rapist every single day. (f) (1).As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the...

  • NAVY | DRB | 2002_Navy | ND02-00750

    Original file (ND02-00750.rtf) Auto-classification: Denied

    ND02-00750 Applicant’s Request The application for discharge review, received 020502, requested that the characterization of service on the discharge be changed to general/under honorable conditions. (DAV Issue) After a review of the Former Service Member (FSM) DD Form 293 Application for the Naval Discharge Review Board of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to support the contentions as set forth by...

  • NAVY | DRB | 2002_Navy | ND02-00132

    Original file (ND02-00132.rtf) Auto-classification: Denied

    Sincerly Yours.After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to note the request of the FSM of a change of the narrative reason for separation of MISCONDUCT. On his personal statement the FSM notes restitution was made on the "bad check" as directed by his C.O. Restitution was made by the FSM in a very timely fashion, his...

  • NAVY | DRB | 2004 Marine | MD04-00100

    Original file (MD04-00100.rtf) Auto-classification: Denied

    MD04-00100 Applicant’s Request The application for discharge review was received on 20031017. And told him about this medical problem and my family history with it. Board and was later discharged with an Other than Honorable discharge.