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

 ex-ABEAN, USN
Docket No. ND02-00201

Applicant’s Request

The application for discharge review, received 020107, 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 020815.  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.

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  To whom it may concern, I, (Applicant), am not here to make excuses for the unauthorized absence.  That I had committed, I feel that I paid my debt to the Navy, I attempted to make amends for my actions yet I feel that there may have been some unfair discrimination taking place at the Commands Legal Dept., I know that I was a good sailor and didn't deserve to be released, my record should reflect this, a simple sailor who made a mistake and paid for it, the Navy was my home and I loved it, I have turned my life around and am now an upstanding citizen, I am in the trucking industry now, I work with children in the Memphis area in my spare time, I want to finish cleaning up my act to ensure the possibility of obtain a government job as a driver, I hope that the Board will hear my plea, and find compassion, I am older and wiser, I have served my country, love my country, and would give my life for my country, I only wish to bring honor back to my family name like my father,  Sincerely

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			900223 - 940131	HON
	Inactive: USNR (DEP)	900221 - 900222	COG

Period of Service Under Review:

Date of Enlistment:  940201		Date of Discharge:  960718

Length of Service (years, months, days):

	Active:    02  05  18
	Inactive:  None

Age at Entry:  23			Years Contracted:  6

Education Level:  12			AFQT:  31

Highest Rate:  ABE3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.20 (3)	Behavior:  3.27 (3)		OTA:  3.27

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC, NDSM, Letter of Commendation (Flag), SASM, SSDR, JMU, GCM, KLM (K)

Days of Unauthorized Absence:  18

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:

940117:	Retention Warning:  Advised of deficiency (Failure to report to appointed place of duty at specified time, disobeying a lawful order (UCMJ Art 92.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
950328:	Civil Conviction: Quincy District Court for violation of operating a motor vehicle on a suspended license.
Sentence: Not found in record.

950512:	NJP for violation of UCMJ, Article 86 (2 specs): (1) Unauthorized absence 0730, 12Mar95 - 1107, 28Mar95 (16 days/apprehended), (2) Unauthorized absence 17Apr95 - 19Apr95 (2 days/apprehended), violation of UCMJ, Article 87 (2 specs): (1) Missing movement through design on 12Mar95, (2) Missing movement through design on 26Mar95,
	Award:  Restriction for 30 days, reduction to ABEAN, oral reprimand.  Reduction suspended for 6 months.  No indication of appeal in the record.

950512:	Retention Warning:  Advised of deficiency (CO's NJP held 12May95.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
950520:	Applicant to unauthorized absence 1830 to 1900, 20May95.

950530:	Applicant to unauthorized absence 1830 to 1900, 30May95.

950705:	Applicant advised of failure to meet the physical readiness standards due to failing the PRT in the Spring 1995 cycle.  Applicant understands will be enrolled in the Command Directed Physical Conditioning Program when cleared to participate by medical. 

950803:	Vacate suspended reduction to ABEAN awarded at CO's NJP dated 12May95 due to continued misconduct.

950803:	NJP for violation of UCMJ, Article 86 (3 specs): (1) Unauthorized absence from a restricted muster on 20May95, (2) Unauthorized absence from a restricted muster on 30May95, (3) Unauthorized absence from a medical appointment on 5Jul95,violation of UCMJ, Article 92 (5 specs): (1) Failure to obey a lawful order on 30May95, (2) Failure to obey a lawful order on 23Jun95, (3) Failure to obey a lawful order on 23Jun95, (4) Failure to obey a lawful order on 30Jun95, (5) Failure to obey a lawful order on 30May95, violation of UCMJ, Article 107: False official statement on 30Jun95.
	Award:  Restriction and extra duty for 45 days.  No indication of appeal in the record.

950804:	Retention Warning:  Advised of deficiency (CO's NJP held on 3Aug95), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
960616:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due a pattern of misconduct, misconduct due to the commission of a serious offense and by reason of weight control failure.  Commanding Officer’s comments (verbatim): "ABEAN (Applicant) was facing disciplinary action for recent violations of the UCMJ: disobeying a lawful written order and attempted missing movement through design (MEDEVAC flight).  When offered non-judicial punishment, he elected court-martial.  However, once charges were referred to a special court-martial, ABEAN (Applicant) and his assigned military counsel requested that the charges be withdrawn and that he be processed for administrative separation.  Accordingly, ABEAN (Applicant) is being triple processed for pattern of misconduct, commission of serious offenses, and PRT failure.  ABEAN (Applicant) has waived his right to an administrative board.
ABEAN (Applicant) was previously found to have violated 13 offenses of the UCMJ.  Those matters were disposed of at non-judicial punishment.  Additionally, ABEAN (Applicant) was convicted in a local state court of driving with a suspended license.  Finally, he has failed to meet the Navy's physical readiness standards.  He has not been medically waived from participation in that program.
Within the past two years, ABEAN (Applicant) has been diagnosed with a serious medical condition.  His condition requires his full attention and compliance with specific medical standards and clinical protocols.  Recognizing this need, the station medical clinic and ABEAN (Applicant's)'s immediate chain of command have provided him considerable support, guidance, and assistance to accommodate his medical needs.  He has not responded to those efforts.
Periodically, ABEAN (Applicant) is required to report to Naval Hospital, Bethesda, Maryland, for medical examinations and treatment.  His transportation to that command is provided by MEDEVAC, through his neglect and/or design, he has missed two flights resulting in losses to the U.S. Government in excess of one-thousand dollars.  If a vigilant LCPO had not cancelled a third flight just prior to its departure, ABEAN (Applicant) would have missed a third MEDEVAC flight.  It was the circumstances surrounding the cancellation of the third flight, which precipitated the most recent disciplinary action.
In addition, ABEAN (Applicant) has missed numerous follow-up medical appointments at the medical clinics at both Bethesda Naval Hospital and NAS, South Weymouth.  According to his physician (see enclosure (6)), ABEAN (Applicant) has totally disregarded the medical protocols and treatment plan developed to address his serious medical condition.
This command has afforded ABEAN (Applicant) every opportunity to improve his behavior and military bearing and to address his medical needs.  Despite those efforts, he has shown not only a total disregard for his own medical condition, but has exhibited a similar disregard for his military duties and responsibilities.  His actions have resulted in the expenditure of significant personnel and financial resources by this command.
In addition to the most recent charges, ABEAN (Applicant) has had two non-judicial punishments and one civilian conviction during this enlistment period.  These offenses alone warrant separation from the U.S. Navy under Other than Honorable conditions.  ABEAN (Applicant) must be held accountable for his actions.  Therefore, I recommend that ABEAN (Applicant) be discharged from the U.S. Navy and that the characterization of his discharge be "Other than Honorable."

960520:	Applicant advised of failure to meet the physical readiness standards due to exceeding the height/weight measurement on the Spring 1996 cycle and/or failing PRT.  Applicant understands he will be enrolled in the Command Directed Physical Conditioning Program when cleared to participate by medical.  (Third testing cycle).

960709:	COMSUBGRU TWO directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

Only partial discharge package available.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 960718 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 contends his discharge was improper because unfair discrimination existed in the legal department.  The Applicant failed to elaborate on this claim and did not provide any supporting documentation.  Relief denied.

Issue 2:  The following is provided for the benefit of the Applicant.  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, positive employment records, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct.  The Applicant failed to provide any of these documents.  Relief is denied.  

The Applicant is reminded that the period of eligibility for a personal appearance hearing is 15 years from the date of discharge.  The application package must be submitted to the NDRB prior to the expiration of the 15 year period.  The Applicant can provide additional documentation to support any claims of post-service accomplishments 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), Change 9, effective 
22 Jul 94 until 02 Oct 96, 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.

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