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NAVY | DRB | 2005_Navy | ND0500278
Original file (ND0500278.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-RMSR, USN
Docket No. ND05-00278

Applicant’s Request
The application for discharge review was received on 20041130. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable or general (under honorable conditions). The Applicant requests a personal appearance hearing discharge review before the Board in the Washington National Capital Region, a personal appearance hearing discharge review before a traveling panel closest to Murrieta, California or a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293. Subsequent to the application, the applicant obtained representation by American Legion. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington National Capital Region. The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060112. 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 to that the character of the discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to commission of serious offense - absent without leave - 30 days or more .




PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Applicant’s issues, as stated on the application:

“To whom it may concern,

The reason I am respectfully requesting the upgrade of my current discharge, is because I am currently applying to Law Enforcement Agencies. Much has changed for me since my discharge from the U.S. Navy, and I have been working and training in the Law Enforcement Field. I again apologize for any inconveniences I have caused to the United States Navy pertaining to my conduct while in the military. I am asking respectfully for another opportunity in life without blemishes from the past. I would like to serve my country to the fullest extent possible, especially with the terrorist threats and war on terrorism happening in this country. I am currently enrolling in college for better education and plea to you for pardon. I am attaching several documents supporting my activities and achievements since my discharge. I ask you to please take these documents into consideration.”

Respectfully,
[signed] V_ C_ (Applicant)


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Outstanding Performance ltr from A_ G_, Vice Chairman Gaming Commission, dtd September 27, 2003 (2)
Certificate of Completion for B.S.I.S. Exposed Firearms dtd, January 30, 2002
Certificate of Completion for Baton Training dtd, January 31, 2002
Certificate of Completion for 40 hours P.C. 832 Arrest, Search & Seizure dtd April 11, 2002
Certificate of Merit for the Better Business Writing Workshop dtd, July 7, 2002 (2)
Security Officer’s Registration Card
Instructor’s Baton Registration Card dtd, January 31, 2002
Security Officer’s Training Academy Baton Registration Card dtd, January 31, 2002
State of California Department of Consumer Affairs Certificate of Completion for Baton
P.O.S.T. Certificate of Training and Identification Card dtd, June 6, 2000
Guard Firearm Registration Card
Applicant’s DD Form 214 (2)
Certificate of Completion for 24 hours P.C. 832 Firearms dtd, February 1, 2003 thru February 9, 2003
Guard Firearm Permit
Medic First Aid Card dtd, February 18, 2003
PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19980130 -       19980224                  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19980225             Date of Discharge: 20000510

 Length of Service (years, months, days):

         Active: 01 06 25 (Does exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 231 days
         Confinement:              45 days

 Age at Entry: 18

Years Contracted: 4

Education Level: 11                                 AFQT: 51

 Highest Rate: RMSA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NA*                  Behavior: NA*    OTA: NA*

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214) : None.
* Not Available


Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/ MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).
Chronological Listing of Significant Service Events :

990201:  Applicant to unauthorized absence at 0700 on 990201.

990201:  Applicant missed ship’s movement.

 990226:  Applicant from unauthorized absence at 1745 on 990226 (25days/surrendered).
990227:  Applicant to unauthorized absence at 1325 on 990227.

990303:  Applicant from unauthorized absence at 1700 on 990303 (4days/surrendered).
990310:  Applicant to unauthorized absence at 0730 on 990310.
990310:  Applicant declared a deserter.

990326:  Applicant missed ship’s movement.
990928:  Applicant from unauthorized absence at 1718 on 990928 (202days/surrendered).
991003:  Pre-trial confinement from 991003 to 000124.
000124:  Special Court Martial
         Charge I: violation of the UCMJ, Article 86, (3 specifications).
         Specification 1: Unauthorized absence from unit on or about 990201 to 990303.
         Specification 2: Unauthorized absence from unit on or about 990201 to 990303.
         Specification 3: Unauthorized absence from unit 990310 to 990928.
         Charge II: violation of UMCJ, Article 87: Miss ship movement on or about 990201.
         Sentence: Confinement for 65 days, reduction to E-1.
         CA
        
000124:  Joined Navy Brig, Naval Station Norfolk, VA, for confinement.

000307:  From confinement, restored to full duty.
000314: The sentence is approved and will be executed but the execution of that part of the sentence extending to confinement in excess of 45 days is suspended for a period of six months, at which time, unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action.
Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20000510 by reason of misconduct due to commission of serious offense - absent without leave - 30 days or more (A and B) with a service characterization of under other than honorable conditions. 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 (C and D). The Board presumed regularity in the conduct of governmental affairs (E).

 The NDRB found that the Applicant’s service record was missing elements of the administrative discharge package. In the Applicant’s case, the Board presumed that the Applicant’s discharge was regular in all respects. The Board discovered no impropriety after a review of the Applicant’s case.

The Applicant requests an upgrade based on post -service conduct. 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 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 following special Court martial proceeding for violations of the UCMJ marred the Applicant’s service:

•         Article 86 (231 days)
•         Unauthorized absence from unit on or about 990201 to 990303.
•         Specification 2: Unauthorized absence from unit on or about 990201 to 990303.
•         Specification 3: Unauthorized absence from unit 990310 to 990928.

•         Article 87
•         Specification 1: Miss ship movement on or about 990201.

The NDRB advises the Applicant that certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline. Violations of Article 86 and 87 are considered serious offenses and typically warrant a punitive discharge if adjudged at a special or general court-martial.
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 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 the following documents as documentation of his post-service:

•         Outstanding Performance ltr from A_ G_, Vice Chairman Gaming Commission, dtd September 27, 2003 (2)
•         Certificate of Completion for B.S.I.S. Exposed Firearms dtd, January 30, 2002
•         Certificate of Completion for Baton Training dtd, January 31, 2002
•         Certificate of Completion for 40 hours P.C. 832 Arrest, Search & Seizure dtd April 11, 2002
•         Certificate of Merit for the Better Business Writing Workshop dtd, July 7, 2002 (2) Security Officer’s Registration Card
•         Instructor’s Baton Registration Card dtd, January 31, 2002
•         Security Officer’s Training Academy Baton Registration Card dtd, January 31, 2002
•         State of California Department of Consumer Affairs Certificate of Completion for Baton
•         P.O.S.T. Certificate of Training and Identification Card dtd, June 6, 2000
•         Guard Firearm Registration Card
•         Certificate of Completion for 24 hours P.C. 832 Firearms dtd, February 1, 2003 thru February 9, 2003
•         Guard Firearm Permit
•         Medic First Aid Card dtd, February 18, 2003
After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate. While the Applicant’s post service efforts are commendable, his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged. 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 additional 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 28, effective
30 Mar 00 until 29 Aug 00, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 86: Unauthorized Absence and Article 87: Missing ship movement. .

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, Para 211, Regularity of Government Affairs .

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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