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NAVY | DRB | 2005_Navy | ND0500800
Original file (ND0500800.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND05-00800

Applicant’s Request
The application for discharge review was received on 20050407. The Applicant requests the Discharge 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 designate a representative on the DD Form 293. Subsequent to the application, the applicant obtained representation by Disabled American Veterans.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060209. 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 by reason of misconduct due to commission of serious offense - absent without leave - 30 days or more .



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated:

No issues were submitted by the Applicant.
Issues submitted by Applicant’s counsel/representative ( Disabled American Veterans):
“Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Under Other Than Honorable Conditions discharge to Honorable.

The FSM served on active service from July 28, 1992 to June 17, 1996 at which time he was discharged due to Misconduct, due to commission of a serious offense.

The FSM contends the current discharge is improper by submittal of his application maintaining that a General discharge was given, contrary to the record. Additional statements by the claimant only ask for a DD 214 to be sent to him as it was not provided at the time of discharge.

In support the FSM submits a letter attesting to the outstanding level of attitude and contribution made during pre-deployment unload in June 1994.

This creates a need for a review of the application of the standard, for the Board to determine that the applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 D, Sect. 407, part 3.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the Applicant.”

Respectfully,
K_ L. G_


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of Dental Treatment Record Folder
Hinesman Award
Leave and Earning Statement (3 pgs)
Letters from Applicant (3)
PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19920727 – 19920728               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19920728             Date of Discharge: 19960617

 Length of Service (years, months, days):

         Active: 03 10 20 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 102 days
         Confinement:              none

 Age at Entry: 22

 Years Contracted: 4 (12 month extension)

 Education Level: 12                                 AFQT: 36

 Highest Rate: SN

 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 3630600.
 .
Chronological Listing of Significant Service Events :

951110:  On 951110 to 951128 SA D_, did, without authority, fail to go at the time prescribed to his appointed place of duty, USS RUSHMORE (LSD 47) for a period of 18 days. He was placed on report. The day of the scheduled NJP SA D_ began another period of unauthorized absence from 951129 to 960221. He was then declared a deserter with manifest intentions of desertion [Extracted from CO’s message].

951129:  Applicant to unauthorized absence at 0700 on 951129.
951129:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 951129 having been an unauthorized absentee since 0700, 951129 from USS RUSHMORE (LSD 47).
960221:  Applicant from unauthorized absence at 0900 on 960221 (84 days/surrendered).
960221:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
 Violation of UCMJ, Article 87: Missing ship’s movement.
          Award: Forfeiture of $350 per month for 1 month, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
960222:  Report of Return of Deserter. Applicant surrendered to military authorities on 960221 (0900) onboard USS RUSHMORE. Returned to military control 960221 (0900). Retained onboard USS RUSHMORE (LSD 47).
960222:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense. (Extracted from USS RUSHMORE Msg dtd 960223)

960222:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation. (Extracted from USS RUSHMORE Msg dtd 960223)
960223:  Commanding Officer, USS RUSHMORE recommended discharge under other than honorable conditions by reason of due to commission of a serious offense as evidenced by all NJP incidents in the current enlistment. Commanding Officer’s comments: “Based on his poor performance since arriving onboard and his total days of over 102 days of UA during the past four months, he has not shown a desire to be a team player, therefore I recommend that he be discharged under conditions other than honorable.”

960405:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct.
Service record was missing elements of the discharge package and elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19960617 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 Disabled Veteran (DAV) representative, on behalf of the Applicant, contends the current discharge Under Other Than Honorable Conditions is improper because the Applicant maintains a General discharge was given. After a careful review of the record, the Board found that the Commanding officer of the USS Rushmore recommended to the Separating Authority, that the Applicant be separated under other than honorable conditions by reason of misconduct due to commission of a serious offense. The Separating Authority (BUPERS) concurred with the CO’s recommendation and directed the Applicant's discharge under other than honorable conditions by reason of misconduct.
 The Board found no impropriety or inequity in the discharge process. Relief is therefore denied.
Additionally, 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 one nonjudicial punishment proceedings for violations of Article 86: ( absent without leave 102 days) and Article 87: ( Missing ship’s movement). 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 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 Applicant contends that he had “outstanding level of attitude and contribution during pre-deployment onload in June 1994”. The Applicant's misconduct is clearly documented, as described above. The evidence of record does not show that the Applicant should not be held accountable for his actions, or any mitigating or extenuating factors sufficient to offset the seriousness of the offenses. Relief on this basis is therefore denied.



The NDRB advises the applicant that his service record is missing elements of the administrative discharge package and Summary of Service. In the Applicant’s case, the Board presumed regularity in the conduct of governmental affairs and that the Applicant’s discharge was regular in all respects.

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 post-service documentation for the Board to consider.

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 additional evidence related to this 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 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT.

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: ( absent without leave) UCMJ, Article 87: ( Missing ship’s 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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