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NAVY | DRB | 2004_Navy | ND04-00993
Original file (ND04-00993.rtf) Auto-classification: Denied


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


ex-RMSN, USN
Docket No. ND04-00993

Applicant’s Request
The application for discharge review was received on 20040601. 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.

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 and reason corrected to 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 believe my discharge was improper because I went unauthorized absent after my wife (W_ S_) was having mental problems, she was suicidel. I took leave for two weeks but it was not enough time. I begged my command for more time but was denied and I went U.A. for one week. I returned to my ship and begged again for more time but was denied. I went UA one more time. I was able to get my wife a doctor who had helped her. I returned my ship again and was instructed to see the base JAG lawer. After giving him my story and proof of my wifes situation he recommended a quick separation from the Navy. Not understanding really what that was about I agreed so I could get back to my wife as soon as possible. I believed a quick no cost to the Navy separation at that time was the way to go but I was wrong. I am not looking for any type of bennefit of any kind I am trying to regain my honor. My service record will show you what type of sailor I was and what kind of person I am. My performance evals were second to no one. My crime was I chose my wife over the Navy. I cannot under stand how my reason for separation was misconduct.”

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
Letter from J_ G_ C_, not signed, dtd 5/20/2004
Letter from M_ P_, not signed, not dated
Copy of Letter of Commendation from Commanding Officer, Recruit Training         Command, dtd 8 Jan 96


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     951026 - 951107  COG
          Active: USN                        None
Period of Service Under Review :
Date of Enlistment: 951108               Date of Discharge: 980807

 Length of Service (years, months, days):

         Active: 01 10 23 (includes lost time)
         Inactive: None

 Age at Entry: 25                 Years Contracted: 4 (12 month extension)
Education Level: 10               AFQT: 75

 Highest Rate: RMSN
Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 0.00 (*)             Behavior: 0.00 (*)                OTA: 0.00

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

 Days of Unauthorized Absence: 311
*No marks found in Applicant’s service record.
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 :

951026:  Applicant given Program Waiver for 3X marijuana use for the Radioman (Surface) rating.
970810:  Applicant UA from USS MOUNT WHITNEY at 0700, 979810.

 970817:  Applicant surrendered on board USS MOUNT WHITNEY at 1400, 970817. Absence not excused, charged 7 days lost time.

970818:  Drug and Alcohol Abuse Report.
         Incident Information: Marijuana abuse 970815. Self referral/disclosure.
         Results of Clinical Screening: Screened by CAAC, amenable to counseling. Recommend separate from service not via VA Hospital.
         Medical Officer Evaluation: Physician determines that Applicant is not dependent, not amenable. Recommend separate from service not via VA Hospital.
         Commanding Officers Action: Process for separation, separate from service not via VA Hospital.
         Disciplinary Action Taken: NJP.

970911:  Applicant UA from USS MOUNT WHITNEY at 0700, 970911.

971014:  Applicant declared a deserter this date.

980713:  Applicant surrendered on board USS MOUNT WHITNEY at 1900, 980712. Absence not excused, charged 304 days lot time.

980807:  DD Form 214: Applicant discharged.

Applicant’s discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980807 under other than honorable conditions in lieu of a trial by court-martial due to desertion (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 complete discharge package (E) .
In the absence of a complete discharge package, the Board presumed regularity of governmental affairs. The Applicant submitted a statement to the NDRB admitting to 2 periods of UA and that he agreed to “a quick separation” from the Navy. The record indicates the Applicant was UA for a total of 311 days. The Applicant’s first period of UA was for 7 days, and the second period of UA was for 304 days. During the second period of UA the Applicant was declared a deserter prior to surrendering to his unit. The Board presumed the Applicant requested discharge to escape trial by court-martial, had the elements of the offense for which he was charged fully explained by counsel, that he was guilty of the offense and that he had a complete understanding of the negative consequences of his actions. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The Applicant contends his disciplinary problems were the result of stress caused by his “wife’s illness.” The NDRB recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve our country. It must be noted most members of the Navy serve honorably and therefore earn their honorable discharges. In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The NDRB found the Applicant's service was equitably characterized. Relief denied.

When the service of a member of the 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 his unauthorized absence for 311 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.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, 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, is considered. The applicant provided two letters of recommendation from his employer as documentation of his post-service. The applicant's efforts need to be more encompassing than those provided. For example, the applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities, in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge. Therefore, no relief will be granted.

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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