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

 ex-ABEAN, USN
Docket No. ND99-01131

Applicant’s Request

The application for discharge review, received 990818, requested that the characterization of service on the discharge be changed to general under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.  Subsequent to the application the applicant obtained representation by the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000522.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  However, the Board determined, that clemency is warranted in this case based upon a review of the member’s complete record, specifically including evidence of outstanding post-service conduct.  The Board’s vote was 3 to 2 that the character of the discharge shall to:  GENERAL(UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. My discharge was inequitable because it was based on only one incident in only 14 months of service.

2.  My discharge is improper because I was led to believe that if I opted for the early out I would recieve a General Discharge.

3.  My discharge is improper because I believe I was intimidated to sign paperwork which I didn't have to but was pressured by individuals which failed to fully inform me of any other options which were available to me until after I had signed offical paperwork.

The Veterans of Foreign Wars of the United States appreciates the opportunity to have conducted a review of the aforementioned applicant's case file on February 25, 2000. The following issues are presented in addition to any/none listed in Item 8, DD Form 293, and in support of the Board action requested in Item 3:

4.  IAW SECNAV Instruction 5420.174C of 22 August 1984 (MDR 1984), enclosure (1), chapter 9, paragraph 9.3, Equity of Discharge, we ask the Board to consider the following factors:

•	The applicant possessed above average marks through August 31, 1994 and was recommended for advancement.
•	Dependency application indicated that the applicant's mother was dependent on him and also listed an "unknown" address for his father.  Further, the applicant was providing $650.00 per month for his mother's support.
•	The applicant and his younger brothers had been placed into foster care in 1991.  Reference Initial Custody Order from the Court of Choctaw County, Oklahoma.  The applicant feared his brothers would be returned to foster care during his mother's time in the hospital and this clouded his judgment.
•	The applicant is now married and still continues to contribute to his mother, who is 100% disabled, and his brother's well being.  Reference medical reports and applicant's statement.
•	He has attained a BA from Southeastern Oklahoma State University.
•	The applicant has a solid work history.  Reference letter from his employer.

The unique mitigating circumstances surrounding the reason behind the applicant's discharge coupled with the outstanding post service conduct are evidence that the type of behavior that led the service to discharge him has not been exhibited since and is not likely to be exhibited again in the future.  This case is truly based on hardship.

5.  We ask the Board to consider the applicant's case IAW SECNAV Instruction 5420.174C of 22 August 1984 (MDR 1984), enclosure (1), chapter 9, paragraph 9.2, Propriety of Discharge.

The Veterans of Foreign Wars of the United States' express purpose in providing this statement, and any other submittals or opinions of record, is to aid the applicant in resolving any improprieties or inequities in the character and basis for discharge.  After reviewing all available evidence, we ask the Board to resolve any doubt in favor of the applicant and to grant the action requested as entitled under Title 10 U.S.C., Section 1553.

Documentation

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

Job reference
Statement from applicant
Copy of marriage license dated 26 August 1997 (2 copies)
College transcript from Southeastern Oklahoma State University
Copy of Bachelor of Arts degree dated 15 May 1999 (2 copies)
Letter from Social Security Administration to applicant's mother dated March 16, 2000
Copy of Maximum Medical Improvement letter dated May 11, 1994 re: applicant's mother and attachments.
Temporary custody papers from District Court of Choctaw County, State of Oklahoma dated 7 November 1991
Letter from applicant
Copy of DD Form 214
Ten pages from applicant's service/medical records

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive:  USNR (DEP)	930716 - 930725	COG

Period of Service Under Review:

Date of Enlistment:  930726		Date of Discharge:  950407

Length of Service (years, months, days):

	Active:    01  08  12
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  13			AFQT:  53

Highest Rate:  ABEAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (1)	Behavior:  3.60 (1)		OTA:  3.60

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM w/1 Bronze Star, AFEM

Days of Unauthorized Absence:  158

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:

941005:	Applicant declared a deserter.  Unauthorized absence since 0700, 4Sep94.

950209:	Applicant from unauthorized absence 0630, 9Feb95 (158 days/surrendered).

950224:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86.
	Specification: Unauthorized absence 0700, 4Sep94 to 0630, 9Feb95
	Charge II: violation of the UCMJ, Article 86.
	Specification: Missing ship's movement on 13Sep94.
	Finding: to Charge I and II and the specifications thereunder, guilty.
	Sentence:  Confinement for 20 days.
	CA action 950301:  Sentence approved and ordered executed.

950307:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by absent without leave (30 days or more).

950307:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation 

950309:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to absent without leave (30 days or more). 

950313:	Applicant released from confinement.

950324:	BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 950407 under other than honorable conditions for misconduct due to absent without leave (30 days or more) (A).  The Board presumed regularity in the conduct of governmental affairs (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 and equitable (C and D).

In the applicant’s issue 1, the applicant states it “was inequitable because it was based on only one incident.”  However, the Board found the discharge was equitable.  The applicant was UA for 158 days and was taken to a Summary Court martial for this offense.  The applicant could have received a Bad Conduct Discharge.  No relief is granted based on this issue.

In the applicant’s issue 2, the applicant was notified on 950307 that he was being processed for administrative separation and that it may result in on other than honorable discharge.  The applicant did not submit proof to show that he was “led to believe “ he would receive a general discharge.  No relief granted based on this issue.

In the applicant’s issue 3, the applicant may have felt intimidated, but the applicant also willingly and knowingly waived his right to counsel.  The Board did not find the discharge improper because the applicant felt intimidated and the applicant has submitted no proof to show that he was being unduly influenced in his decision.  No relief granted based on this issue.

Based on the applicant’s post-service accomplishments in issue 4, the Board voted 3 to 2 to grant relief to the applicant and upgrade the applicant’s discharge to general (under honorable conditions).

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.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article [e.g., 86, for unauthorized absence for a period in excess of 30 days] if adjudged at a Special or General Court-Martial.

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		Washington Navy Yard
		720 Kennon St SE Rm 309
		Washington, D.C.  20374-5023