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

ex-SA, USN
Docket No. ND01-00645

Applicant’s Request

The application for discharge review, received 010416, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011031.  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.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  December of 1990 I enlisted in the navy.  Which I fully intended to make a career for myself.  My plans were to complete my four years enlistment then attends school after doing so.  Having a husband and child were not on my agenda.  My husband M___ C____, former petty officer third class Navy.  He was the main source of my problems, mentally and emotionally. I married M____ during my second year of service with navy.  During this time I got pregnant but still maintained most of my duties.  But M____ began to become more e and more abusive.  For example when I completed my course for I.C.. He threw my completed forms away.  He had several affairs.  Which brought on a lot of mental stress and anger.  I felt totally helpless.  Thoughts of now having to raise a child on my own still having a desire to complete my career with the navy with M____ placing obstacles in my way.  He was reassigned to California.  I was to follow him later but total lack of trust and anger for my husband clouded my judgement.  Which in turn lead me taking unauthorized leave of 41 days.  I just could not deal with life, the deceit and the adultery.  I realize that I had made a mistake by leaving the navy.  I tried to come back to the navy and finish my career but the same problems still persist.  Which did not allow me to do so.  Now my husband and I are no longer together.  I have spent a lot of years trying to restart my life and do something positive for my children and myself.  Now realizing the mistakes I have made.  I would like you to review my records with the navy and please consider changing my other than honorable discharge to an honorable discharge.  I fully understand that I am at you mercy and desperately need your assistance.

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	900307 - 901209	COG

Period of Service Under Review:

Date of Enlistment:  901210		Date of Discharge:  931110

Length of Service (years, months, days):

	Active:    02  11  01
	Inactive:  None

Age at Entry:  17			Years Contracted:  4 

Education Level:  12			AFQT:  48

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.10 (4)	Behavior:  3.40 (4)		OTA:  3.35

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM 

Days of Unauthorized Absence:  49 

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:

930820:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 930729 having been an unauthorized absentee since 2400, 930630 from NASNI.

930820:	Report of Return of Deserter.  Applicant surrendered onboard TPU Philadelphia at 1520, 930818. Returned to military control 930818. Retained onboard TPU Philadelphia for further transfer to NAS North Island, CA.

930902:	NJP for violation of UCMJ, Article 86: Did on or about 2400, 930630, without authority, failed to report to her organization, to wit: NASNI, and did remain so absent until she surrendered onboard TPU Philadelphia, PA on or about 1520, 930818.
	Award:  Forfeiture of $456.00 per month for 2 months, restriction to NASNI for 60 days, reduction to E-2.  Appealed.

930921:	Retention Warning:  Advised of deficiency (CO's NJP of 930902 for VUCMJ, Article 86, Specification: On or about 930630, failed to report to her organization, to wit: NAS North Island and did remain so absent until surrendering onboard TPU Philadelphia, Pennsylvania on or about 1520, 930818). Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

931004:	Appealed denied.

931014:	NJP for violation of UCMJ, Article 92: Failure to obey punitive restriction orders.
	Award:  No disciplinary action taken.
	
931015:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

931018:  	Applicant advised of her rights and having elected to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to submit statements in own behalf either verbally or in writing, to obtain copies of the documents used to support the basis for the separation, also elected to have a minimum of two working days to respond to the Notice of Notification Procedure Proposed Action.  Election to this right requires that I date and sign this document two working days later than the receipt date of the Letter of Notification.  If my signature is dated earlier that the above stated time, this right is considered waived.  Applicant also objected to separation if the characterization is under other than honorable conditions.

931027:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. 

931102:	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 931110 under other than honorable conditions for misconduct due to commission of a serious offense (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).

Issue 1.  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.  The applicant’s service was marred by award of nonjudicial punishment (NJP) for commission of a  serious offense triable by court-martial (E).  The applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for an honorable characterization of service.  The record is devoid of evidence that the applicant was not responsible for her conduct or that she should not be held accountable for her actions.  An upgrade would be inappropriate.  Relief denied.

The discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that 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, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of her not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to her discharge.  She is reminded that she remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of her discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

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.  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.  

C.  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.

D.  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.

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

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 "afls10.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023