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NAVY | DRB | 2004_Navy | ND04-00175
Original file (ND04-00175.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND04-00175

Applicant’s Request
The application for discharge review was received on 20031107. 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. In the acknowledgement letter the applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington DC area. The Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040720. 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 request an upgrade of discharge for the sole purpose of I am trying to get into the N.Y.C. Police Dept. I was a young confused young man. Now an adult trying to jump start a career for my family.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Initial Review Officer’s Memorandum
Waiver of personal appearance before reviewing officer
Travel Certificate, Separation without orders, dated September 7, 1990
Applicant’ s DD Form 214
Enlisted Navy strength loss, dated August 8, 1989

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     881031 - 890807  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 890808               Date of Discharge: 900913

 Length of Service (years, months, days):

         Active: 01 01 06         [Does not exclude lost time]
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 48

 Highest Rate: AR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NOB                           Behavior: 2.80 (1)                OTA : 2.80

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 43

 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 :

900416:  Applicant declared a deserter.

 900419:  Applicant apprehended by Memphis Police 0900, 900419, and returned to military control 1630, 900419.


900522:  Special Court Martial:
         Charge I: violation of the UCMJ, Article 86 (5 specifications):
         Specification 1: Unauthorized absence from 0700, 900129 - 1130, 900130 (1 day/surrendered).
         Specification 2: Unauthorized absence from 0700, 900205 to 1214, 900207 (2 days/surrendered).
         Specification 3: Unauthorized absence from 0700, 900209 to 1215, 900215 (6 days/surrendered).
         Specification 4: Unauthorized absence from 900303 to 900306 (3 days/ ).
         Specification 5: Unauthorized absence from 0630, 900318 to 1630, 900419 (31 days/apprehended).
         Findings: to Charge I and specifications 2 and 5 thereunder, guilty. Charge I and specification 1 withdrawn by the government.
         Sentence: CHL for 4 months, forfeiture of $482 per month for 4 months.
         CA 900717: Sentence approved and ordered executed.
900730:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
900730:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
900813:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

9008__:  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.
900830:  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.
900905:  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 19900913 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 a Special Court-Martial conviction for four specifications of violation of Article 86 of the UCMJ, to include one specification of 31 days of unauthorized absence. 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Relief is not warranted.

The Applicant contends that his problems in the Navy can be attributed to being “young and confused.” While he may feel that his immaturity was 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. 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 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. 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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