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

ex-FA, USN
Docket No. ND02-01127

Applicant’s Request

The application for discharge review, received 020807, 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030501.  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, as submitted

1.  FA (Applicant) (myself) was denied right to speak with commanding officer after going thru proper procedure, to discuss extenuating circumstances/

2.  FA (Applicant) was denied temporary assigned duty for one-week to attend and assist wife in counseling for post-partum depression.  My division, the chaplain & the executive officer told me they would not help.

3.  FA (Applicant0 was charged with Article 83 after admitting to minor drug use as a young teen in my application.  I was also charged with Article 86 & 87.  I did miss ships movement on 95JAN13, but turned myself in the next business day.  I missed ships movement to attend counseling with wife.

4.  FA (Applicant) tried every legal means available to a sailor to try getting emergency leave or T.A.D. orders.  My wife was not taking care of herself or my son and I told my X.O.  Counseling was an emergency.  X.O. flat denied T.A.D. orders or emergency leave.  X.O. refused right to plead with captain.

5.  FA (Applicant) was labeled a sub-standard sailor for my drop in performance after receiving Red-Cross message while involved in operation "uphold democracy" from wife stating, "No paycheck this month, no food in house, many bills, I need help."
Neither am I a sub-standard sailor, only human, but I believe I am undeserving of an other than honorable discharge.
As I understand, the command staff of USS AMERICA was under review at this time and I believe this incident is an example of mistakes on both my part and command.
Things could have been handled better that would not have jeopardized my wifes' and my sons' health, or my career.
Please upgrade my discharge to general under honorable conditions.
Respectfully,

Documentation

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

Statement from Applicant, dated October 29, 2002
Applicant's DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	940322 - 940406	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  940407		Date of Discharge:  950425

Length of Service (years, months, days):

	Active:    01  00  19	Does not exclude lost time
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  62

Highest Rate:  FA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.00 (1)	Behavior:  2.80 (1)		OTA:  1.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  4

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:

940408:	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 if it is found that additional information has not been disclosed, this waiver is void and you could be subject to other judicial or administrative proceedings, ie., minor in possession, 11/90, Alburn, CA, 6 months probation (2nd alcohol offense), speeding, 1990, Hartselle, AL, paid $150 fine.

950113:	Applicant to unauthorized absence, 0515, 950113.

950117:	Applicant from unauthorized absence 0600, 950117 (4 days/surrendered).

950130:	Applicant from unauthorized absence 0600, 950130 (17 days/surrendered).

950329:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 83:
	Specification: Fraudulent enlistment on 940322.
	Charge II: violation of the UCMJ, Article 86:
	Specification: Unauthorized absence from 950113 to 950117.
	Charge III: violation of the UCMJ, Article 87:
	Specification: Missing ship's movement on 950113.
	Finding:  to Charge I, II and III, and the specifications there under, guilty.
	Sentence: Forfeiture of $319.00, confinement for 30 days.
	CA action 950331: Sentence approved and ordered executed.

950329:	Applicant to confinement.

950414:	Applicant from confinement.

950331:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

960331:	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.

950402:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

950413:	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 950415 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).

The Applicant contends he did not receive due process thus his discharge was neither proper nor equitable.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted.  There is no evidence of impropriety, inequity or procedural irregularities in the Applicant's discharge.  The Applicant acknowledged and waived his right to administrative review.  The Applicant was afforded the appropriate due process at every opportunity, thus due process was honored.  The NDRB found the Applicant's service record devoid of any mitigating or extenuating factors that would warrant an upgrade of the Applicant's discharge to an honorable characterization.  Relief denied.
 
Furthermore, the Applicant contends that personal problems he faced while on active duty mitigated his misconduct.  The NDRB recognizes that serving in the U.S. Navy is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  The record, however, is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his action.  Relief denied.

The following is provided for the edification of the Applicant.  There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.  However, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  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.  Verifiable proof of 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 credible evidence of a substance-free lifestyle are examples of verifiable documents that may be provided to receive consideration for relief based on post-service conduct.  At this time, the Applicant has not provided such documentation for the Board to consider.

The Applicant 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.  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 "afls14.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