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NAVY | DRB | 2004_Navy | ND04-00950
Original file (ND04-00950.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND04-00950

Applicant’s Request
The application for discharge review was received on 20040526. The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to convenience of the government. 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 20041103. 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 and narrative reason 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:

“All issues are typed on Attachment 1.

 The following issues are the reasons I believe my discharge should be upgraded to Honorable. If you disagree, please explain in detail why you disagree. The presumption of regularity that might normally permit you to assume that the Navy acted correctly in characterizing my service as less than honorable does not apply to my case because of the evidence that I am submitting.

1. Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge. No respectable company will hire me. I cannot get unemployment compensation to assist me in my job search. I’ve been borrowing money from the few members left in my family to help me find a job. I am single, I do work, but my income is neither stable nor consistent. I cannot afford to live outside of my grandmother’s house. I do not have any medical insurance. I have many skills and desires, yet I am struggling to get my next meal.

2. I was so close to finishing my tour that it was unfair to give me a bad discharge.

3. I have been a good citizen since discharge. I have attended various college classes and seminars in an effort to afford myself an opportunity to become a normal, tax-paying citizen of the United States.

4. My ability to serve was impaired in part by my family problems. The main reason for my so-called misconduct was that I needed to be with my family. My mother never approved of my military career:
her religion forbade it. I saw very small changes in my sister and mother’s relationship take place in the letters my mother sent me. In her letters my mother would tell me my sister needs me. She would say, “Talk to your sister. .I can’t control her.. .she’s stressing me out.. .I need your help.” I couldn’t believe it, my younger sister became a nuisance, stressing out my mother; she wasn’t attending school anymore. The weaker my mother became, the more defiant my sister became. Her husband became more physically and mentally abusive. I sent my mother money, because her husband could not keep a job. I began to believe that my absence was damaging my family and pulling them apart. I was right:
my mother wanted everyone to be together again as a family. I felt like I was part of the cause of my mother’s sickness. I felt like I was stressing her out by staying in the military. My mother would not tell me what was wrong with her because she did not want me to worry, but I did worry and I knew her stress was serious. This emotional stress caused me to become depressed, confused, and indecisive. I was determined to prove to the Navy that it was in their best interest to terminate my military career. I did anything to get out. When I finally managed to get out of the Navy, I found out my instincts were unfortunately right and it was too late to save her. Her stress created cancer. In less than two years. she passed at age 45. Now that she is gone, I have no reason that I cannot serve a full tour in the military.

5. I tried to apply for a hardship discharge hut was unfairly told to forget about it. I expressed my feelings to my Captain and Executive Officer and Chaplain and many others in my direct chain of command about getting some kind of discharge for the problems I was facing. I didn’t know what to do and I wasn’t informed of my options. My Captain was angry that I confided with a Chaplain and that I wanted to get out; he refused to listen to me any further. My Executive Officer listened and felt bad for me, but he stood behind the Captain. I decided to do something about it. I went UA, a few days, a couple times, which didn’t do anything but get me restriction. Then I forgot to take my homework, some ship drawings, out of my bag when I left the ship; I had left the drawings in my barracks room, in the locker and went UA for 28 days. When I came back I was court-martialed for Espionage. I chose to be discharged in lieu of court-martial under other than honorable conditions. There is my so-called misconduct of Espionage and UA.

Thank you for reviewing and considering my application .”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
ITT Technical University certificate of academic excellence
Copy of death certificate

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     971126 - 971209  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 971210               Date of Discharge: 000630

 Length of Service (years, months, days):

         Active: 02 06 21 (Does not exclude lost time)
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 10                        AFQT: 68

 Highest Rate: FTSA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.00 (1)    Behavior: 1.00 (2)                OTA: 1.17

 Military Decorations: None

 Unit/Campaign/Service Awards: NUC, AFEM, SSDR

 Days of Unauthorized Absence: 30

 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 :

990516:  To UA.

990518:  From UA, to duty.

 000330:  Evaluation Report comments: absence from place of duty and missing ship’s movement from a foreign port resulted in three NJPs, resulting in reduction to E-1, loss of pay, and restriction.
000504:  NJP for violation of UCMJ, Article 86: UA, and for violation of UCMJ, Article 92, disobey a lawful order.
         Award: Charges referred to court-martial.
000515:  Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ), Article 86: UA from USS Pittsburgh from 000305 to 000403; violation of UCMJ, Article 87: Miss movement of USS Pittsburgh on 000307; violation of UCMJ, Article 92: Derelict in the performance of duties by failing to store confidential material in a proper manner; and violation of UCMJ, Article 107: False official statement to Cmdr L_ on 000504.
000525:  Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial. He consulted with counsel. The Applicant admitted he was guilty of all the charges preferred against him. Specifically, he admitted to violating UCMJ, Articles 86, 87, 92, and 107. The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.

000622:  The Commander, Submarine Group TWO, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000630 under other than honorable conditions in lieu of a trial by court-martial (A and 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).

Issues 1 and 3. The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety is evident during the Applicant’s enlistment. Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, to enhance employment opportunities, or for good conduct in civilian life, subsequent to leaving the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. Evidence of continuing educational pursuits, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct. The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge. Relief not warranted.

Issues 2 and 4. On 20000525, the Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial. He consulted with counsel and admitted he was guilty of all the charges preferred against him. The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing. 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. No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation. Relief denied.

Issue 5. The Board’s regulations limit its review to a determination on the propriety and equity of the discharge. The Applicant’s contention that he was unfairly denied a hardship discharge does not mitigate his misconduct or refute the presumption of regularity in this case. Relief denied.
The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. 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; Article 87, missing movement; Article 92, disobey a lawful order; and Article 107, false official statement, upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-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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