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

 ex-RMSR, USN
Docket No. ND01-00958

Applicant’s Request

The application for discharge review, received 010728, requested that the characterization of service on the discharge be changed to general under honorable conditions.  The applicant requested a personal appearance discharge review before a traveling panel closest to Memphis, TN.  The applicant listed the Disabled American Veterans as the representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 020416 without counsel.  After a thorough review of the records, supporting documents, facts, testimony, 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 (verbatim)

1.  This matter needs to be cleared and furthermore my prior svc via 4 yr honorable duty and Desert/Shield/Storm Veteran should not be discharged with an OTH for a misdemeanor.

2.  I R--- A P---- II of sound mind respectfully request my discharge of (OTH) be upgraded to Honorable conditions.  I entered the service in Feb 90 and requested an (OTH) in MAR 95 after receiving a Court Marshall for going U.A.  At that particular time I was going through a lot of depression and was very unhappy where I was.  I was confused.  I was traumatized after serving my country for two consecutive back to back overseas tours along with serving during Desert Shield/Desert Storm.  If you evaluate my record you will see that I deserve an Honorable discharge.

3.  I’ve upheld a job with different construction companies as an electrician and uilt numerous power plant’s for communities al over the United States.

4.  I’ve stayed a good citizen and voted every year after I left the service.

Documentation

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

Statement from applicant dated June 14, 2001 (2 copies)
Character reference dated June 7, 2001 (2 copies)
Character reference dated June 11, 2001 (3 copies)
Character reference dated June 5, 2001 signed by thirteen people (2 copies)
Character reference dated June 7, 2001 (2 copies)
Letter from Disabled American Veterans to applicant dated July 2, 2001
Copy of appointment of veterans service organization dated June 16, 2001
Statement in support of claim dated June 16, 2001
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:    USN 		900222 - 930725	HON
	Inactive:  USNR (DEP)	900210 - 900221	COG

Period of Service Under Review:

Date of Enlistment:  930726		Date of Discharge:  950531

Length of Service (years, months, days):

	Active:    01  10  06
	Inactive:  None

Age at Entry:  22			Years Contracted:  5

Education Level:  12			AFQT:  35

Highest Rate:  RM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.90 (2)	Behavior:  3.80 (2)		OTA:  3.90

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM(2), NUC, KLM, OSR

Days of Unauthorized Absence:  144

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:

930726:	Applicant reenlisted for 5 years.

940718:	Applicant to unauthorized absence 0800, 18Jul94.

940815:	Applicant returned to military control.

940816:	Applicant to unauthorized absence since 0730, 16Aug94.

940915:	Applicant declared a deserter.  Unauthorized absence since 0730, 16Aug94.

941202:	Applicant from unauthorized absence 1427, 01Dec94, apprehended.

941205:	Report of Return of Deserter.  Applicant apprehended by civil authorities at 1427, 1Dec94 at Dunedin, FL.  Applicant returned to military control 1440, 1Dec94.

950112:	Special Court Martial
	Charge I: violation of the UCMJ, Article 86:
	Specification 1: Absence without leave on or about 18Jul94 to 15Aug94.
Specification 2: Unauthorized absence on or about 16Aug94 to 01Dec94.
	Findings: to Charge I and specifications thereunder, guilty.
	Sentence: CHL for 4 months, forfeiture of $100 per month for 3 months, reduction to RMSA.
	CA 950320:  Sentence approved and ordered executed, but the execution of that part of the sentence adjudging confinement in excess of 90 days shall be suspended for a period of 12 months from the date the sentence is adjudged, at which time, unless the suspension is sooner vacated, the suspended portion of the confinement shall be automatically remitted without further action.

950213:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidence by your special court martial on 950112 as documented in your service record.

950213:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.  [Date estimated.]

950325:	Chief of Naval Personnel forwarded recommendation for discharge to Assistant Secretary of the Navy.

950405:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.  Commanding officer’s comments:  RMSA (applicant) has shown blatant disregard for the rules and regulations of the military as evidenced by his unauthorized absence.  Based on the seriousness of the offense RMSA (applicant) has committed, I strongly recommend that he be separated from the naval service with an other than honorable discharge for misconduct due to commission of a serious offense.

950420:	Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved applicant's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

950508:	BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct.

990823:	NDRB documentary record review Docket Number ND98-01164 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 950531 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).

The applicant’s issues 1 and 2 request the Board consider the applicant’s entire service record and positive contributions to the service and change the discharge to Honorable.  The NDRB carefully considered the applicant’s service record and found the Other Than Honorable accurately characterizes the applicant’s last enlistment.  The record shows the applicant was found guilty at Special Court Martial of two specifications of unauthorized absence with one UA greater than 30 days terminated by apprehension.  Clearly, the negative aspects of the applicant’s second enlistment outweigh his positive contributions and the Other Than Honorable discharge equitably characterizes the applicant’s service.  Relief is not warranted.

The applicant’s issues 3 and 4 request a change based on post service conduct.  The NDRB is authorized to consider post-service factors in the re characterization of a discharge.  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 the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, may be considered by the NDRB.  The applicant failed to provide documentary evidence to demonstrate his positive community service, employment history, and clean police record.  Relief is not warranted.

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.  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.

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