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

 ex-AN, USN
Docket No. ND02-00058

Applicant’s Request

The application for discharge review, received 011002, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing discharge review before a traveling panel closest to Norfolk, VA.  The applicant did not list any 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.  The Naval Discharge Review Board (NDRB) also advised that the board first conducts a documentary review prior to any personal appearance hearing. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 020701.  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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. Dear Sir or Madam,

I am writing in regards to my discharge out of The United States Navy I feel my discharge was inequitable because of different situations.  My first situation was because of my wife's illness.  Mrs. C_ R_ S_ was born with one kidney in which she had under control with the help of her doctors until she was thirty, at which time I was enlisted in The United States Navy.  A_ S_, brought this to the attention of my Command, but was ignored and turned away.  Instead of helping me through the situation I was discharged, because my family situation was a burden to the Navy.  I asked for transfers, temporary assignments along shore so I may be near my wife, but my request was denied I was told no many times by my Command.  Even the Red Cross sent messages stating that I needed to be there for my wife in her time of sickness, but even their request was denied.  My wife's doctors' wrote messages to my Command stating I need to be there for my wife since she may have to undergo a kidney transplant, their request was denied.  I even spoke with the Chaplains, but the request from myself, my wife's doctors’ and that of the Red Cross continued to be denied.  I tried my best to be a sailor my family would be proud of, but I became discouraged.  I honestly felt I was going through this alone, and I had no one to turn to.  I was always encourage to make sure your family was taken care of, because family is important.  I was only being what I am suppose to be, A Husband, A Father, A Provider for my family.  The only option I was offered from the Command was to take a discharge and leave the Navy which is something I didn't want. All I asked was to be closer to my wife in her time of need, still my request was denied. I became frustrated and angry at the whole situation.  My wife was alone with my five year old daughter, at the time, while she was enduring through her illness.  It even got to the point in which my Command stated that I was neglecting my family and was not taking care of them.  That made my situation worse.  In the three years of serving in the Navy I have never been in any serious trouble. When all this happen I was taken to Captain Mass, put on restriction and denied to see my family on the arrival after a six month cruise.  After I reached Norfolk, Virginia, while still being on restriction, four days later I was told I was being put out of the Navy due to misconduct.  I was given an Other Than Honorable Discharge and a reentry Code RE-4.  Now I could not go into any other branch of military service. Being I never made it to my wife in her time of need, we are presently going through a divorce after being married for eight years.  In all regards, I lost more and I have earned nothing.  I am not asking you to give me an Honorable Discharge, but to give me a chance to earn my Honorable Discharge.  I would like to finish what I started, My time in the military. I am requesting that my Other than Honorable Discharge be changed to an Honorable Discharge.

Documentation

In addition to the service record (there was NO DISCHARGE PACKAGE AVAILABLE), the following additional documentation, submitted by the applicant, was considered:

Letter from Applicant 

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		None
	Inactive: USNR (DEP)	970924 - 970929	COG

Period of Service Under Review:

Date of Enlistment:  970930		Date of Discharge:  000822

Length of Service (years, months, days):

	Active:    02  10  21
	Inactive:  None

Age at Entry:  17			Years Contracted:  4 

Education Level:  12			AFQT:  33

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (2)	Behavior:  2.50 (2)		OTA:  2.33

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, SSDR(2), NAVY"E"RIBBON (2), GCM(2) 

Days of Unauthorized Absence:  19 

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

971001:	You are being retained in the Naval Service, despite your fraudulent induction as evidenced by your failure to disclose required basic enlistment eligibility information.  This decision is based on the information you provided the RECRUIT QUALITY ASSURANCE INTERVIEWER and it if is found that additional information has not been disclosed you could be subject to other judicial or administrative proceedings.  Driving without a license, 8/97, PINELAKE, GA, Time served 14 days.

980515	To UA.

980517:	From UA (2 days/S).

991122:	To UA.

991129:	From UA (7 days/S).

000218:	UA from USS DWIGHT D. EISENHOWER (CVN-69) located at Norfolk, VA at 0700, 000218.  Intention unknown.  Member declared a deserter on 000218.  Member missed ship's movement on 000218.  Member delivered to civilian authorities at Richmond, VA at 0900, 000217, for a failure to appear.  Member returned to military control at Transient Personnel Unit, Norfolk, VA at 0800, 000228.  Absence not excused.  Member charge 10 days lost time.

000323:	Retention Warning:  Advised of deficiency (You appeared before the Commanding Officer on 000323 for unauthorized absence and miss ship's movement), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
 
000323:	NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ Article 87: Miss ship's movement.
	Award:  Forfeiture of $250.00 pay per month for 1 month (suspended for 6 months), restriction and extra duty for 30 days.  No indication of appeal in the record.

000617:	Retention Warning:  Advised of deficiency (Your behavior has been and continues to be unsatisfactory.  Despite numerous counseling sessions, including 2 administrative remarks entries in your service record, your conduct continues to be marred with deficiencies.  Specifically, your failure to properly manage your finances, adequately support your dependents, pay just debts (including Virginia court fines), and your lack of attention to detail at work are a discredit to USS DWIGHT EISENHOWER (CVN-69) and the Navy). Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

000803:	NJP for violation of UCMJ, Article 91 (2 Specs): Disrespect in language and disobeying a lawful order from a third class petty officer; violation of UCMJ Article 92: Failure to obey a lawful order from the Commanding Officer, to wit: failed to submit budget to division officer.
	Award:  Restriction and extra duty for 45 days, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 000822 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.  The applicant failed to convince the Board that his command treated him unfairly concerning his marital problems.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure of that expected of a sailor.  The applicant’s service was marred by award of nonjudicial punishment (NJP) for offenses triable by court-martial on two occasions and adverse counseling entries on other occasions.  The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. While he may feel that his frustration with his marital problems was a factor that contributed to his actions, the record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. In addition, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Relief denied.

The applicant’s discharge characterization accurately reflects his service to his country.  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 is evident 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 his 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 his discharge.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his 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 28, effective 
30 Mar 00 until 29 Aug 00, Article 1910-142  [formerly 3630605]. SEPARATION 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.

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