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NAVY | DRB | 2004_Navy | ND04-00057
Original file (ND04-00057.rtf) Auto-classification: Denied


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

ex-GSMFA, USN
Docket No. ND04-00057

Applicant’s Request
The application for discharge review was received on 20031008. 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 20040712. 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. “I returned from deployment to find my wife had packed my household and child and moved. Being young and in love I went AWL to find them and try to re-consolidate my marriage after being unable to do so I return to my ship on my own.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214. (Service 2)


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     910829 – 920105  HON
         Active: None

 Period of Service Under Review :
Date of Enlistment: 920106                        Date of Discharge: 950911

 Length of Service (years, months, days):

         Active: 03 08 06
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 52

 Highest Rate: GSM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.93 (3)    Behavior: 2.80 (3)                OTA: 3.47

 Military Decorations: None

 Unit/Campaign/Service Awards: BEA, NDSM, MUC

 Days of Unauthorized Absence: 90

 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 :

950422:  Applicant to unauthorized absence.

950522:  Declared deserter

950723:  Surrendered to military authority at 2230, 950723 (90 days).

 950725:  Letter from LTJG B_ on the investigation of violation of UCMJ charges ICO GSM3 J_ L_ W_ (Applicant).
950802:  NJP for violation of UCMJ, Article 85: Desertion, violation of UCMJ Article 87 (7 specs): Missing movement on 950516, 950606, 950616, 950618, 950620, 950630, 950705.
         Award: Forfeiture of $85.87 per month for 2 months (6 months suspended), restriction and extra duty for 45 days, reduction to GSMFA. No indication of appeal in the record.

950802:  NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ Article 92: Failure to obey lawful order, violation of UCMJ Article 134: Wrongful use or possession of an unauthorized military identification card.
         Award: Restriction and extra duty for 15 days, reduction to GSMFN. No indication of appeal in the record.
950802:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
950802:  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.
950810:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. Commanding Officer’s comments: GSMFA W_ (Applicant) behavior is unacceptable. Although once a good performer, GSMFA W_ (Applicant) has been found guilty of committing several violations of the UCMJ. His chain of command has attempted to work with him and aide him in dealing with his significant personal problems. GSMFA W_ (Applicant) strongly desires to be separated from the naval service. His presence adds no value to the navy. Due to the seriousness of these offense. I strongly recommend GSMFA W (Applicant) receive an other than honorable discharge from the naval service.

950905:  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 19950911 under other than honorable conditions for misconduct due to commission of a serious offense (A & B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

Issue 1. When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. An Under Other Than Honorable Conditions discharge 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 unauthorized absence for 90 days in addition to violations of Article 85, Desertion, Article 87 Missing Movement, and Article 134 for wrongful possession of an unauthorized identification card. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The Applicant contends that his problems in the Navy can be attributed to his marital problems. While he may feel that his personal problems were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief on this basis is 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), 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. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 86, for unauthorized absence for a period in excess of 30 days, if adjudged at a Special or General Court-Martial.

C. 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.

D. 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.

E. 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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