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NAVY | DRB | 2005_Navy | ND0500194
Original file (ND0500194.rtf) Auto-classification: Denied


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

ex-YNSN, USN
Docket No. ND05-00194

Applicant’s Request
The application for discharge review was received on 20041110. 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 20050428. After a thorough review of the available 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 3630650.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “For the reason of being disable and uses of benefits to survive.”

Remarks:

“Respectfully requesting upgrade of discharge.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 1)
Applicant’s VA Form 10-10EZ (2 pages)
Eleven pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     910319 - 910325  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 910326               Date of Discharge: 950815

 Length of Service (years, months, days):

         Active: 04 04 20                  [Does not exclude lost time]
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 46

 Highest Rate: YN3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.93 (3)             Behavior: 4.00 (3)                OTA: 3.93

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM (2), SSDR (2)

 Days of Unauthorized Absence: 444

 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 3630650.

 Chronological Listing of Significant Service Events :

910328:  You are being retained in the Naval service, despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your pre-service civil involvement: 2 1987/1988 speeding tickets, Virginia. However, any further deficiencies in performance or conduct may result in processing for administrative separation.

930228:  Applicant to unauthorized absence 1601, 930228.

930331:  Applicant declared a deserter.

930421:  Applicant from unauthorized absence 2305, 930421.

930513:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence from 930228-930421.
         Charge II: violation of the UCMJ, Article 87:
         Specification: Missed ship’s movement on 930301.
          Finding: to Charge I and II and the specifications thereunder, guilty.
          Sentence: Forfeiture of $667.00, confinement for 20 days.
         CA action 930514: Sentence approved and ordered executed except for that portion of the sentence pertaining to forfeiture of $333.00 pay per month is suspended for 6 months.

930513:  Applicant found fit for confinement.

930513:  Applicant to confinement.

930529:  Applicant from confinement. Applicant given 3 days credit for good behavior.

930603:  Retention Warning: Advised of deficiency (Pattern of misconduct as evidenced by your violation of the UCMJ, Article 86: Unauthorized absence form 930228 to 930421, Article 87: Missing ship’s movement on 930301), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

940516:  Applicant to unauthorized absence 0700, 940516.

940524:  Applicant missed ship’s movement.

940603:  Applicant missed ship’s movement.

940616:  Applicant declared a deserter.

940627:  Applicant missed ship’s movement.

940729:  Applicant missed ship’s movement.

940808:  Applicant missed ship’s movement.

940812:  Applicant missed ship’s movement.

940816:  Applicant missed ship’s movement.

940823:  Applicant missed ship’s movement.

950613:  Applicant from unauthorized absence 1650, 950613.

950815:  DD Form 214: Applicant separated under other than honorable conditions/in lieu of trial by court martial, authority: NAVMILPERSMAN, Article 3630650.

 Applicant’s separation package not contained in service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950815 under other than honorable conditions in lieu of a 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 complete discharge package (E).

Issue 1. T he 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.

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 two retention warnings and a summary court-martial. The Applicant also spent a total of 444 days in unauthorized absence, missing ship’s movement eight times. The Applicant’s second violation of Article 86 is considered a serious offense. 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 denied.

The following is provided for the edification of the Applicant. 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 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. 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 2 Oct 96, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR SEPARATION IN LIEU OF TRIAL BY COURTMARTIAL.

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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