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NAVY | DRB | 2005_Navy | ND0500867
Original file (ND0500867.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-ETSN, USN
Docket No. ND05-00867

Applicant’s Request
The application for discharge review was received on 20050426. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions and the reason for the discharge be changed to Hard Ship Discharge. The Applicant requests a documentary record discharge review. The Applicant listed Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050811. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discovered that there was no impropriety but determined there was inequity in the characterization of the Applicant’s service. The Board decided by a vote of 3 to 2 that the character of the discharge shall change and, by a unanimous vote, that the reason for discharge shall remain the same. The discharge shall read: GENERAL UNDER HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

 “To Whom It May Concern:

About six months before I got out of the Navy, I found out that my father had terminal cancer. It really affected me mentally. I felt leaving the ship was the best way to get out of the Navy at the time. I later realized that I was wrong; and I had taken the wrong action. I went through a psychological evaluation. They didn’t find anything wrong with me except that I was immature (I was). The reason why I went through the evaluation is because I heard it was away to get out of Navy. Once again, I was wrong. I’m not blaming the Navy for my mistakes or, the punishment I received for violating the UCMJ. I just failed to find out what my options were at the time for my situation. I was told about getting a Hardship Discharge so I could be with my father because of his illness. I didn’t follow up. Again, I’m not blaming the Navy for my circumstances. The Navy was good for me and to me. But, I’m now asking you to change my discharge from Other Than Honorable to a Hardship Discharge or a General Discharge. Character references are available upon request. Thank you

Sincerely,
[signed]
M_ J. M_ (Applicant)”

Additional issues submitted by Applicant’s counsel/representative 20040412 (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 (OTH) discharge to that of General Under Honorable Conditions with a change in narrative reason to Hardship.

The FSM served on active service April 22, 1994, aboard the U.S.S Harlan County CLST 1196, at which time he was discharged due to misconduct.

The FSM goes onto explain that the problem with his active duty were not derived from conduct, but from his father’s diagnosis of terminal cancer and his inability to handle the circumstances. As a result, he went absent from his ship in a poor attempt to leave the Navy. Later the Command at the time sent the FSM through a Psychological examination hat found no defects except for immaturity. It is based on this immaturity that the FSM made multiple poor decisions in attempts to exit military service and be with his ailing father.

In continuance the FSM does not blame the military for his actions but put the blame on himself for the poor decisions and inability to seek the proper assistance in obtaining an early separation/discharge from Naval service.

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 5420.174C.

Under the premises of equitable relief, we believe the Board can change the narrative reason to a hardship discharge or Convenience Of The Government, removing the notation of conduct. As to the request of the change of discharge to reflect a general discharge we leave that to a determination by the board, as a productive life, providing for his family. It his desire to achieve an upgrade to better serve/or provide for his family, which attest to his change of character and development of maturity.

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.”

Additional issues submitted by Applicant’s counsel/representative 20050622 (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 the request for a discharge upgrade of the current Other Than Honorable Conditions discharge to that of General Under Honorable Conditions. For the sake of brevity we refer the Board to the documentation submitted by the service dated April 12, 2004, and in cooperate into this memorandum by reference only.

The FSM served on active service from August 20, 1992 to April 22, 1994 to at which time he was discharged due to a Commission of a Serious Offense.

The FSM contends the current discharge is improper because his family situations at the time prohibited proper judgment and control, leading to the inappropriate actions, and requests fair consideration for those circumstances and his good service up until that point.

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.

 Character statements supplied by those that have known the Applicant since his discharge reflect opinions showing a great change in the character of the Applicant. We believe this to reflect a picture of an individual with a high devotion to his employment and family that has matured and grown as an individual learning to balance the needs of both to find equipoise.
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.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Job/character reference from Paper Pulp Supervisor, Federal Bureau of Investigation, U.S. Department of Justice, dated August 2, 2004
Character reference from Reverend of Miracle Temple Non-Denimination Church, Inc., dated July 27, 2004
Job/character reference from President, Shred-Tech LLc, dated March 7, 2005
Job/character reference from Chief Engineer, GSA White House Service Center, dated May 4, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     901109 - 910917  ELS
                  USNR (DEP)      910924 - 920812  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 920813               Date of Discharge: 940422

 Length of Service (years, months, days):

         Active: 01 08 10         Does not exclude lost time
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 77

 Highest Rate: ET3

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: *NMA                 Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 4

* No marks 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 :

940221:  Applicant to unauthorized absence 0805, 940221.

940225:  Applicant from unauthorized absence 1853, 940225 (4 days/surrendered).

 940311:  NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 87: Missing movement.
         Award: Forfeiture of $485 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.
940311:  Applicant notified of intended recommendation for discharge by reason of misconduct due to the commission of a serious offense. Characterization of service will be under other than honorable conditions. [Extracted from Commanding Officer’s message dated 940329.]
940315:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights. [Extracted from Commanding Officer’s message dated 940329.]

 040328:  Psychiatric evaluation at Portsmouth Naval Hospital by LCDR R_ P_,
MC, USNR. Applicant found to be alert, orientated, and competent. Denied auditory or visual hallucinations. Applicant returned to duty. Patient offered follow up appointment, but he declined. No psychotropic medications indicated. Medical authorities discussed this with the Applicant who verbalized his understanding and agreement.
        
940329:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

940405:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940422 under other than honorable conditions for misconduct due to commission of a serious offense (A and B). 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).
The Applicant and his representative from the Disabled American Veterans (DAV), contend that he was immature and unable to cope with the news about his father’s terminal illness. The Applicant further contends that his impaired mental state resulted in his using poor judgment. The NDRB advises the Applicant that certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline. The Applicant's misconduct is documented in his service record, which is marred by a (19 940311) nonjudicial punishment for:

•         Violation of UCMJ, Article 86 : Unauthorized absence from 940221 to 940225.
•         Violation of UCMJ, Article 87: Missing movement
A violation of Article 87 is considered a serious offense and typically warrants a punitive discharge if adjudged at a special or general court-martial. The board found no impropriety in the Applicant’s discharge. Relief is not warranted.

The Disabled Veterans (DAV) representative, on behalf of the Applicant, asks the Board’s consideration of the case based on equitable relief. After reviewing the Applicant's record, the Board found that the characterization of the Applicant's discharge was inequitable. The Board noted and considered the excellent post service conduct of the Applicant since discharge. The Applicant has demonstrated a strong commitment to community and excellence. After a careful review of the Applicant's post service documentation, in addition to his official service record and supporting documentation, the Board found that partial relief is warranted for equity reasons.

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 5, effective
05 Mar 93 until 21 Jul 94, 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 .

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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