5420
CORB:003
15 Mar 06

From: Secretarial Review Authority
To: Naval Discharge Review Board (NDRB)
Via: President, Naval Discharge Review Board

Subj: REQUEST FOR REVIEW: CASE OF
EX AA, USN, DOCKET NO. ND05-00349

Ref: (a) President, NDRB ltr of 3 Feb 06
         (b) NDRB Decisional Document (Docket No.
ND05-00349)
         (c) SECNAVINST 5420.174D
         (d) Mr. T--- ltr of 7 Mar 06
         (e) Minority Opinion ICO Docket No. ND05-00349
        
1. I have reviewed subject case as requested by reference (a). It is my determination that the decision of the NDRB (reference (b)) is not supported by the evidence of record. Accordingly, per the authority granted me in reference (c), applicant’s discharge will not change and will remain characterized as Under Other Than Honorable Conditions by reason of Misconduct. Following is a discussion of the issues presented by applicant at his personal appearance hearing and in reference (d).

2. At his personal hearing, the applicant presented two issues for the Board’s consideration. The first was an issue of propriety in which the applicant claims that his under other than honorable conditions discharge was too harsh because the “UCMJ violations that his separation is based on is improper.” In reviewing this issue, I concur with the determination of the NDRB that applicant’s separation for misconduct was proper and in accordance with regulations. The evidence of record, as well as applicant’s testimony, clearly shows that he committed the offense of missing movement which, in accordance with regulations, is defined as a serious offense. Further, there is no evidence in the record, nor did applicant provide any, that lends any credence to his contention that his non-judicial punishment or administrative separation proceedings were not proper. Accordingly, relief on this issue is not warranted.

3. The second issue raised by applicant at his hearing was one of equity under which applicant requests an upgrade to his discharge based on his post-service conduct. Reference (b)

noted that applicant had not provided sufficient evidence of his post-service conduct to warrant relief on this basis. I concur with this determination. The applicant’s evidence of post-service conduct consisted of two letters, one verifying current employment and the other (unsigned) attesting to his character. As noted in reference (e), the applicant did “not provide any further credible corroborating evidence for education, community service or non-involvement with civil authorities.” Based on the evidence presented, I determined that relief on the basis of post-service conduct was not warranted and did not demonstrate that applicant’s in-service misconduct was an aberration or inconsistent with his record of service or post-service activities. On an administrative note, the official decision of the NDRB is inconsistent with references (a) and (e) which state that one member of the NDRB panel voted for relief based upon member’s post-service conduct. Since this fact is not reflected in the NDRB’s official decision document, it is presumed that the majority of the NDRB panel that considered this case was in agreement as to their reason for voting to upgrade applicant’s discharge.

4. The decision of the NDRB to upgrade applicant’s characterization of discharge was based upon the Board’s determination that an inequity had occurred. Specifically, the Board determined that the applicant’s in-service personal difficulties were sufficient to mitigate the Applicant’s misconduct. The evidence upon which the Board based it’s determination was the uncorroborated testimony of the Applicant that his marital difficulties were the direct cause of his missing the movement of the operational unit to which he was assigned. The applicant further contended that these marital difficulties resulted in his self-referral to the Psychiatric Unit of Portsmouth Naval Hospital. As a result of this self-referral, applicant was recommended by medical authorities for expeditious administrative separation processing due to unsuitability.

5. Notwithstanding the above, I found insufficient evidence to substantiate the NDRB’s determination that applicant’s personal difficulties mitigated the misconduct that resulted in his administrative separation. In all cases considered by the NDRB, the “presumption of regularity” is applied. This presumption considers the government to have acted properly unless there is “substantial credible evidence to rebut the presumption.” In this case, the evidence submitted by applicant does not meet this standard in that it lacks corroboration and, even if true, does not mitigate the applicant’s misconduct. The demands of naval service and assignment to a deployable operational unit are well known. This service, understandably, occasionally places great strain even upon the most solid of marriages. However, the vast majority of Sailors and their families are able to reconcile their personal difficulties with the needs of the service. In this regard, acceptance of applicant’s reason for missing ship’s movement would be grossly unfair and inequitable to the potentially thousands of other sailors similarly situated who fulfill their legal commitments. While there are instances in which particularly severe marital problems could serve as the basis for a discharge upgrade, equity requires that these occasions be well-documented and corroborated by individuals other than the applicant in order to ensure an “indicia of reliability” sufficient to warrant positive action by the NDRB. In applicant’s case, he has not presented any corroboration or evidence, other than his own testimony, that the facts of his case were unusual or warranted an upgrade to his discharge. Accordingly, I found relief on this basis to be unwarranted and the determination of the NDRB unsupported by the record.

6. In reference (d), which was submitted in rebuttal to reference (a) and (e), the applicant claims that these documents ignored discrepancies in his record and asserted that the majority vote of the NDRB should not be overturned. In response, as noted above, the evidence of record is clear, and the NDRB found, that applicant committed the misconduct for which he was separated. The burden is on the applicant to produce evidence of discrepancies in his record, which he has not done at this point. Therefore, this issue is considered without merit and does not warrant relief.

7. Per reference (c), decisions of the NDRB are subject to review by the Secretarial Review Authority (SRA) who has been delegated final decisional authority for NDRB cases on behalf of the Secretary of the Navy. While decisions of the NDRB are afforded careful consideration, they are not binding upon the SRA who is responsible for ensuring that such decisions comport with regulations. For this reason, your contention that the
decision of the NDRB should not be set aside is also not an issue upon which relief can be granted.

8. Given its concurrent impact upon operational readiness and morale, the offense of missing ship’s movement is justifiably considered a very serious offense. Consequently, those individuals administratively separated under this basis will not be afforded relief without sufficient evidence that the discharge was improper or inequitable. In this case, the record of evidence does not demonstrate that the discharge was improper, nor does it show that applicant was treated differently than others similarly situated, that current policies have changed, or that his quality of service (including post-service) mitigates his misconduct. For these reasons, applicant’s reason and characterization of discharge shall not change.

9. This case is returned to the President, NDRB, for continued processing. Applicant is reminded that he may petition the Board for Correction of Naval Records for relief if he believes an injustice or error has occurred in the review of his case.



                                                      M. L. CULVER
                                                      Colonel, USMC
                                                      Director,
                                                      Secretary of the Navy
                                                      Council of Review Boards

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

ex-AA, USN
Docket No. ND05-00349

Applicant’s Request

The application for discharge review was received on 20041216. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Region. The Applicant listed the American Legion as the representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20051118. After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case an inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was 3-2 that the discharge shall change to: GENERAL (UNDER HONORABLE CONDITIONS)/ MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

Issues submitted by Applicant’s counsel/representative ( American Legion):

“1. (Propriety Issue) This former member avers that his UOTHC discharge is to harsh because the UCMJ violations that his separation is based on is improper.

2. (Equity Issue) This former member further requests that the Board consider provisions of SECNAVINST 5420.174D, Part V, Paragraph 503, as it pertains to post-service conduct, in assessing the merits of this application.”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214
Applicant’s DD Form 215
Outpatient Disposition Form for discharge on August 2, 1996
Memorandum Endorsement from Naval Medical Center, Portsmouth, VA, dtd August 2, 1996
Reference from A_ B_, undated
Reference from C_ N_, dtd October 4, 2000 (unsigned)
1 page from Evaluation Report and Counseling Record dtd July 29, 1996
1 page from Evaluation Report and Counseling Record dtd August 1, 1996

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PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Inactive: USNR (DEP)     19940524 – 19940612      COG
         Active: None

Period of Service Under Review :

Date of Enlistment: 940613               Date of Discharge: 961008

Length of Service (years, months, days):

         Active: 02 03 24         (Excludes lost time)
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: 2 days
         Confinement:              None

Age at Entry: 18                         

Years Contracted: 4

Education Level: 12                        AFQT: 42

Highest Rate: AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 3.60 (1)    Behavior: 3.60 (1)       OTA: 3.60       (4.0 evals)
Performance: 2.67 (3)    Behavior: 1.67 (3)       OTA: 3.06       (5.0 evals)

Unit/Campaign/Service Awards: National Defense Service Medial, Southwest Asia Service Medial with Bronze Star, Navy Unit Commendation, Sea Service Deployment Ribbon, Armed Forces Service Medal, NATO Medal

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events :

960415:  Applicant on unauthorized absence 0700-0805, 960415.

960729:  Applicant to unauthorized absence at 0700. [Extracted from page 13 entry.]

960731:  Applicant to unauthorized absence. [Extracted from Applicant’s 961007 NJP and page 13 entry.]

960731:  Applicant missed ship’s movement at 0700.

960731:  Applicant reported to medical at 1330. [Extracted from memorandum provided by Applicant for his previous review.]

960802:  Applicant released from medical at 1440 with orders to report to his command no later than 960802 at 1700.
         Discharge Diagnosis:
         AXIS I: OSMC – none found.
         AXIS II: PDNOS with antisocial and dependent traits.
         AXIS III: None.
         [Extracted from memorandum provided by Applicant for his previous review.]

960805:  Applicant from unauthorized absence 0700, 960805. Applicant’s EAOS extended to 980616.

960930:  Applicant failed to go to appointed place of duty (morning muster) at 0700.

961001:  Applicant failed to go to appointed place of duty at 0700.

961007:  NJP for violations of UCMJ
Article 86 (3 specs): (1) Unauthorized absence from 0700, 960731 to 0700, 960805, (2) Fail to go to appointed place of duty, to morning muster on 0700 960930, (3) Fail to go to appointed place of duty on 0700, 961001.
Article 87: Missing ship’s movement on 960731.
         Award: Forfeiture of $490 per month for 2 months, bread and water for 3 days, reduction to E-2. No indication of appeal in the record.

961008:  DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to the commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

000720:  NDRB documentary record review Docket Number ND00-00088 conducted. Determination: discharge proper and equitable; relief not warranted.

Applicant’s discharge package missing from service record.

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19961008 by reason of misconduct due to commission of a serious offense (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 but not equitable (C and D).

Issue 1. After reviewing the Applicant’s service record and testimony, the Naval Discharge Review Board did not find any improprieties in the Applicant’s nonjudicial punishment, administrative separation or characterization of service. The Applicant’s reason for discharge was misconduct due to the commission of a serious offense. The evidence of record and testimony provided by the Applicant clearly show that the Applicant committed a serious offense by missing ship’s movement on 19960731. Relief on this basis is denied.

Issue 2. 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 post-service documentation for the Board to consider. Relief on the basis of post-service conduct is denied.

Though the Board did not find any inequities or improprieties based on the Applicant’s issues as submitted, the Board found an inequity in the Applicant’s discharge character of service based on the Applicant’s testimony. The Applicant testified that:
He was experiencing extreme anxiety when he committed the serious offense which formed the basis for his discharge.
Prior to the Applicant’s commission of a serious offense, the Applicant was experiencing significant marital problems.
His wife was disrupting his workplace by, for example, phoning his command and falsely informing his superiors that she and their children were in dire conditions. His wife’s actions were severe enough that the Applicant was removed from flight deck operations and reassigned to V-5 (Air Department Administration). He attempted to mitigate his wife’s impact on his performance by relocating his wife and children to Louisiana.
After relocating his family, his wife returned to Norfolk, took his car keys and attempted to take his vehicle.
The Applicant was involved in a dispute over his wife’s attempt to take the vehicle at the time he missed movement.
His marital problems were so severe that he, subsequent to missing movement and surrendering his car to his wife, self-referred to Naval Medical Center Portsmouth, VA, for homicidal and suicidal ideations.
That he was treated for three days and released after resolving his homicidal and suicidal ideations.
When the Board considered the Applicant’s discharge in light of the Applicant’s testimony, the Board found the Applicant’s under other than honorable conditions discharge inequitable. The Board found, by a vote of 3 to 2, that the Applicant’s personal problems at the time of his misconduct were sufficient to mitigate the Applicant’s misconduct and voted to change the Applicant’s character of service to general (under honorable conditions). Partial relief granted.

The following is provided for the edification of the Applicant. The Applicant has exhausted his opportunities for review by the NDRB. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.




Pertinent Regulation/Law (at time of discharge)

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 87, missing movement, if adjudged at a Special or General Court-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 .

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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