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NAVY | DRB | 2004_Navy | ND04-00851
Original file (ND04-00851.rtf) Auto-classification: Denied


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


ex-AA, USN
Docket No. ND04-00851

Applicant’s Request
The application for discharge review was received on 20040427. The Applicant requested the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a documentary record review. The Applicant did not list a representative on his DD Form 293. Subsequent to the application, the Applicant obtained representation from the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050118. 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/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 1910-106 (formerly 3630650).



PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as stated

 Applicant’s issues, as stated on the application:
“I would like the Board to consider the fact that at the time of discharge, I had very serious personal and family issues. Family issues were beyond my control. But I also had an addiction problem. Since then I have become a Christian regularly attend meetings and church. If I had known it would be this much trouble to regain my place in society I would have thought twice. Currently I am applying for the Atlant Fire Dept, and I need a more favorable Discharge. Thanks
Respectfully,

 D_ C_ R_ (Applicant)”
The American Legion did not provide any issues.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of the Applicant’s DD Form 214
Statement from Applicant, undated
Certificate of recognition from the Salvation Army, dated May 23, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     940817 - 941027  COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 941028               Date of Discharge: 980123

 Length of Service (years, months, days):
         Active: 03 02 26         Does not exclude lost time
          Inactive: None
Age at Entry: 23                          Years Contracted: 4

 Education Level: 9                         AFQT: 38
Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 4.67 (3)             Behavior: 3.33 (3)                OTA: 4.22

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM, SSDR

 Days of Unauthorized Absence: 102
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 1910-106 (formerly 3630650).
Chronological Listing of Significant Service Events :

960805:  Applicant to unauthorized absence 0730, 960805.
960815:  Applicant from unauthorized absence 1900, 960815 (10 days/surrendered).
961023:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 960805 to 960815.
         Award: Forfeiture of $300.00 per month for 2 months, restriction and extra duty for 45 days, reduction in rate. Forfeiture and reduction suspended for 6 months. No indication of appeal in the record.
961025:  Retention Warning: Advised of deficiency (Your nonjudicial punishment of 961023, for violation of the Uniform Code of Military Justice, Article 86: Unauthorized absence from your unit.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

970217:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 121 (2 specs):
          Specification 1: Wrongful appropriate an ATM Card.
          Specification 2: Larceny of $10.00.
          Finding: to Charge I and the specifications thereunder, guilty.
          Sentence: Restriction for 45 days, reduction to E-2.
         CA action 970223: Sentence approved and ordered executed.

970805:  Applicant declared a deserter after intentions to desert manifest and having been an unauthorized absentee since 0001, 970727.

971219:  Applicant found qualified for separation.

 980108:  Applicant notified of VA rehabilitation for treatment for a minimum of 30 days due to alcohol and/or drug dependency prior to discharge.
980123:  DD Form 214: Applicant discharge under other than honorable conditions in lieu of a trial by court-martial, authority: NAVMILPERSMAN, Article 1910-106.

          Applicant’s discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980123 with a characterization of under other than honorable conditions in lieu of trial by court-martial (A and B). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a discharge package (E).

In the absence of a discharge package, the Board presumed regularity of governmental affairs. Therefore, the Board presumed the Applicant requested discharge to escape trial by court-martial, had the elements of the offenses for which he was charged fully explained by counsel, that he was guilty of the offenses and that he had a complete understanding of the negative consequences of his actions. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The Applicant contends that his problems in the Navy can be attributed to his "serious personal and family issues". While he may feel that these issues were the underlying cause of his misconduct, the record clearly reflects his willful disobedience of the orders and directives regulating good order and discipline in the naval service and demonstrated he was unfit for further service. The evidence of record did not show the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

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 nonjudicial punishment proceedings for violation of Articles 86 (UA for 10 days) of the UCMJ, and he was also found guilty by a summary court-martial of violation of Article 121 (2 specifications). Also, the Applicant was declared a deserter during a period of unauthorized absence totaling 92 days. 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.

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety 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 for the Board to consider. 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), Change 18, effective
12 Dec 1997 until 10 July 2000, Article 1910-106 (formerly 3630650), SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B. A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article 86, unauthorized absence for a period more than 30 days, upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-Martial.
C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .
E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.


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 “ http://Boards.law.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:

                   Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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