Search Decisions

Decision Text

NAVY | DRB | 2006_Navy | ND0600362
Original file (ND0600362.rtf) Auto-classification: Denied


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

ex-SN, USN
Docket No. ND06-00362

Applicant’s Request
The application for discharge review was received on 20060103 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions) . The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061103 . 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 in lieu of a trial by court-martial .

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Applicant’s issues, as stated on the application:
“ Proving to be honorable in the civilian sector . S ince discharge no further trouble working at Children ’ s Hospital. ”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         
         Inactive: USNR (DEP)     19971217 - 19980504       COG
          Active: None

Period of Service Under Review :
Date of Enlistment: 19980505              Date of Discharge: 20030529

Length of Service (years, months, days):

          Active: 0 5 00 2 4 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 39 2 day s
         Confinement:              8 day s

Age at Entry: 1 9

Years Contracted: 4

Education Level: 12                                 AFQT: 32

Highest Rate: YNSN

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2 . 3 ( 3 )              Behavior: 1 . 7 ( 3 )                 OTA: 2 .0 5

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Sea Service Deployment Ribbon (3)


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

UNDER OTHER THAN HONORABLE CONDITIONS/ IN LIEU OF TRIAL BY COURT MARTIAL, authority: MILPERSMAN, Article 1910-106 (formerly 3630650).

Chronological Listing of Significant Service Events :

990904:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 194 5 , 990819 until 2345, 990819.
                   Award: 30 days restriction. No indication of appeal in the record.
990909:  Retention Warning: Advised of deficiency (Unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
000228:  Applicant to unauthorized absence from USS CONSTELLATON at 0700 on 000228 intentions unknown .
000328:  Applicant from unauthorized absence at 2315 on 000328 (29 days/surrendered).
000503:  Summary Court-Martial.
         Charge: violation of the UCMJ, Article 86: Unauthorized absence.
         Specification: UA from unit from 000228 until 000328.
         Finding: Not found in record.
          Sentence: Forfeiture of $774.00 pay per month for 1 month, reduced to E-2, confinement for 30 days.
         CA action 000508: Only so much of the sentence extending to 30 days confinement is changed to 60 days restriction. The sentence as changed is approved and will be executed.
        
000508:  Applicant released from confinement and returned to full duty status.

 010413:  NJP for Charge I: Violation of UCMJ, Article 86 (7 specs): Failed to go at the time prescribed to liberty risk muster on hangar bay two at 2130, 010405; 0700, 010406; 2130, 010406; 0700, 010407; 2130, 010407, 0800, 010408; 2130, 010408 .
          Specification 8 : UA from unit from 0700, 010409 – 0115, 010410.
         Charge II: Violation of UCMJ, Article 92 : Violate a lawful general regulation on divers occasions between 010324 and 010404 by wrongfully possessing more than one validated Armed Forces Identification cards .
         Award: Forfeiture of $ 585. 00 pay per month for 2 month s , restriction and extra duty for 45 days, reduction to E- 2 . No indication of appeal in the record.
010430 :  NJP for Charge I: V iolation of UCMJ, Article 86 : UA from restricted men’s berthing from 0130-0630, 010425 .
          Charge II: Violation of UCMJ, Article 91 : Disrespect in language and deportment towards MA 3 A_, a superior petty officer in the execution of his office, by mocking him in front of other restricted personnel while he was giving out cleaning assignments and when told to be quiet, the said SA L_ (Applicant) approached MA2 A_ with his fists clinched at his side and said, “This is disrespect”, or words to that effect.
         Award: Confinement and 3 days bread and water . No indication of appeal in the record.
0 2 0 412 :  Applicant to unauthorized absence at 123 0 on 0 2 0 412 intentions unknown .
0 30409 :  Applicant from unauthorized absence at 1810 on 0 30409 ( 362 days/apprehended by the San Diego, CA, Sheriff’s Department at 1400, 030409. Returned to military control at 1810, 030409. Retained onboard for further disposition) .

030428:  Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86: In that Seaman D_ R. L_ (Applicant), U.S. Navy, Navy Region Southwest Transient Personnel Unit, San Diego, California, on active duty, did, on or about 020412, without authority, absent himself from his unit, to wit: USS CONSTELLATION, located at Naval Air Station, North Island, California, and did remain so absent until he was apprehended on or about 030409 .

030429 :  Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial . He consulted with counsel and was fully advised of the implications of his request. The Applicant stated he understood the elements of the offense(s) with which he was charged, and admitted he was guilty of all the charges preferred against him . Specifically, he admitted to violating UCMJ, Article 86 . The Applicant understood that if discharged under other than honorable conditions , it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.

030512 :  Commanding Officer, Navy Region Southwest Transient , approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge Under Other Than Honorable Conditions .

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20030529 in lieu of a trial by court-martial (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 Applicant desires an upgrade to General (Under Honorable Conditions). When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as under other than honorable conditions 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. There is irrefutable evidence that the Applicant’s conduct during his time in the Navy was not honorable. Indeed, the Applicant’s records contain:
•         Non-judicial punishment proceedings on 199 90904 for violation of UCMJ Article 86 Unauthorized absence;
•         Retention warning entry on 199 90909 for deficiencies in performance and conduct concerning unauthorized absence ;
•         Summary Court-Martial proceedings on 20000503 for violation of 8 specifications of UCMJ Article 86 Unauthorized absence;
•         Non-judicial punishment proceedings on 20010413 for violation of UCMJ Article 86 Unauthorized absence and Article 92 Failure to obey regulation;
•         Non-judicial punishment proceedings on 200104 30 for violation of UCMJ Article 86 Unauthorized absence and Article 9 1 Disrespect in language and deportment ; and
•         C harges preferred to special court-martial on 20030428 for violation of UCMJ Article 86 Unauthorized absence for 362 days.
 The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls well below that required for a general characterization of service. An upgrade would be inappropriate; therefore relief is denied.

The Applicant informs the Board that he is “proving to be honorable in the civilian sector,” has had “no further trouble” since discharge, and is “working at Children’s Hospital.” While 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 service, the Board 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. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. Evidence of continuing educational pursuits, verifiable employment records, documented community service, and certification of non-involvement with civil authorities are examples of documentation that should have been provided to receive consideration for relief based on post-service conduct. At this time, the Board found that the Applicant’s statements concerning post-service conduct, without documented evidence, do not mitigate the misconduct, which precipitated discharge. No relief is granted on this basis.

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 post-service accomplishments or any other evidence related to the 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), re-issued October 2002, effective 22 Aug 2002 until Present, Article 1910-106 (formerly 3630650), SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B. A punitive bad conduct discharge may be adjudged upon conviction by a Special or General Court-Martial, in accordance with the Manual for Cour ts-Martial, for violation of UCMJ Article 86 U nauthorized absence for a period more than 30 days and Article 92 Failure to obey regulation .

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

Similar Decisions

  • NAVY | DRB | 1999_Navy | ND99-00605

    Original file (ND99-00605.rtf) Auto-classification: Denied

    ND99-00605 Applicant’s Request The application for discharge review, received 990329, requested that the characterization of service on the discharge be changed to honorable. Decision A documentary discharge review was conducted in Washington, D.C. on 000104. Chronological Listing of Significant Service Events : 850115: Ordered to active duty for 36 months under the Active Mariner program.880630: NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.

  • USMC | DRB | 2006_Marine | MD0600352

    Original file (MD0600352.rtf) Auto-classification: Denied

    Findings : Guilty Charge III: Violation of Article 91: Specification: On or about 000228, was disrespectful toward Sergeant J_ H_, U.S. Marine Corps. Findings : Guilty Charge IV: Violation of Article 112a: Specification: Did, between 000123 and 000224, wrongfully use marijuana. Findings : Guilty Sentence: Confinement for 90 days, forfeiture of $630.00 per month for 3 months, Bad Conduct discharge.

  • NAVY | DRB | 2000_Navy | ND00-00961

    Original file (ND00-00961.rtf) Auto-classification: Denied

    I would like the Board to review my service record and consider on upgrading my discharge to an Honorable. 960415: Applicant from unauthorized absence 2130, 15Apr96 (116 days/surrendered).950506: Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Unauthorized absence (UA) from 0700, 5Dec95 until 2130, 15Apr96.pplicant requested an administrative discharge under other than honorable conditions in lieu of a trial by...

  • NAVY | DRB | 2006_Navy | ND0600806

    Original file (ND0600806.rtf) Auto-classification: Denied

    The Board’s vote was unanimous that the characterization of discharge shall not change and 3 to 2 that the narrative reason for discharge shall change to: SECRETARIAL AUTHORITY, authority: MILPERSMAN 1910-164, Separation Code “JFF.” PART I - APPLICANT’S ISSUES AND DOCUMENTATION Issues, as stated on American Legion Statement 1. Documentation Only the service record was reviewed. The Commanding Officer directed the Applicant’s discharge with a general characterization but did not clearly...

  • NAVY | DRB | 2004_Navy | ND04-00878

    Original file (ND04-00878.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. PART I - APPLICANT’S ISSUES AND DOCUMENTATION PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW Discussion The Applicant was discharged on 20030725 under other than honorable conditions for misconduct due to commission of a serious offense (A).

  • NAVY | DRB | 2001_Navy | ND01-00499

    Original file (ND01-00499.rtf) Auto-classification: Denied

    At the time I went into the navy, I was very ambisious about being in the service. Applicant declared a deserter on 860501 having been an unauthorized absentee since 0715, 860331 from USS DAHLGREN (DDG-43).880108: Report of Return of Deserter. 880229: Special Court Martial Charge I: violation of the UCMJ, Article 86, (0) Specifications.

  • NAVY | DRB | 2006_Navy | ND0600429

    Original file (ND0600429.rtf) Auto-classification: Denied

    PART I - APPLICANT’S ISSUES AND DOCUMENTATION Issues, as stated Applicant’s issues, as stated on the application: “ Respectfully request change of bad conduct discharge into an honorable discharge, also please change my separation code:jjd/901 and re-entry code of re4. 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 violations of the UCMJ, Articles 86 (Unauthorized...

  • NAVY | DRB | 2006_Navy | ND0600314

    Original file (ND0600314.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. 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 (B and C).The Applicant desires an upgrade because she is “very ashamed of [her] reasons for being discharged.” When a Sailor’s service has been honest and faithful, it is appropriate to characterize...

  • USMC | DRB | 2002_Marine | MD02-01212

    Original file (MD02-01212.rtf) Auto-classification: Denied

    PART I - APPLICANT’S ISSUES AND DOCUMENTATION Issues, as submitted Prior to the documentary discharge review, the Applicant introduced no issues as Block 8 on the DD Form 293 is blank. 950705: Vacate suspended reduction to PFC awarded at CO's NJP dated 950615.950721: NJP for violation of UCMJ, Article 86 (2 specs):

  • NAVY | DRB | 2006_Navy | ND0601057

    Original file (ND0601057.rtf) Auto-classification: Denied

    Elements of Discharge: [BCD] Record of Trial Complete: Date Charges Preferred: 19830203 Date Charges Referred to Special Court-Martial: 19830215 Trial Date: 19830225Applicant requested BCD: Length of BCD Suspension:Date Applicant to Confinement: 19830225 Date Applicant from Confinement: 19830415Date Applicant to Voluntary Appellate Leave: 19830419NC&PB Action and Date: Clemency review waived 19920224NMCCA Action and Date: Affirmed findings and sentence on 19830727Date Appellate Review...