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

 
ex-RMSN, USN
Docket No. ND03-00484

Applicant’s Request

The application for discharge review was received on 20030130.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests 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 20040114.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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 stated

Applicant’s issues, as stated on the application:

Issue 1:  “I was released from active duty military service with the Navy in October 1998, with an other than honorable discharge. At the time of my release, I was married with a 2-year-old daughter. My wife and daughter were in California; I was in Washington. Additionally, my wife was an alcoholic and used illegal drugs.

She began calling me telling me she didn’t have a place for her and my daughter to live, that I needed to come and take care of them. Her calls became more desperate until she said if I didn’t, she was going to kill herself. She had a history of previous suicide attempts. I spoke to everyone in my chain of command whom I could contact. I spoke to the chaplain. I had all documentation for an emergency leave except one signature. I was told the final signature would come from someone who had left for the weekend and nobody else could sign, nor could this person be reached. While searching for assistance, I kept calling my wife trying to reassure her that I was doing everything I possibly could to get home quickly. Her suicide threats sounded more and more real. Fearing for the safety of my wife and, more importantly, my innocent daughter, I left my, AWOL to get them a place to live, medical help for my wife, and care for my daughter.

When I arrived, I found my daughter slept in a chair at night, not even a bed. I thought I was doing the best thing for her. My life, however, took a nosedive downward. After awhile, I realized that I had been conned by this individual once again. I called my parents when reality sat it about my marital situation and the gravity of the mistake I had made by coming home. At the time, I didn’t know they had been in constant telephone contact with my commanding officer. They gave me telephone numbers where I could reach my commanding officer. They told me if I needed a ride to San Diego so I could return, they would take me. Unfortunately, my wife had other plans in motion and I didn’t get a chance to make my phone call and turn myself in.

As soon as I rented a house for her, stocked the cabinets and refrigerator with food, she called and had me arrested for a crime I did not commit. I had witnesses willing to testify about the lies she told the police. Her stepmother later told me that she thought my wife had this planned so I would go to federal prison and she could collect welfare for the rest of her life. I don’t know if it was considered plea-bargaining or what, but I pled guilty so that I get back to the Navy quickly. When I returned to the Navy, I served my punishment and was released.

My wife and I divorced 3/99. In February 2000, after an injury inflicted on my daughter that could have left her blind, the court awarded full legal custody rights of our daughter to me. Visitations are at my discretion. However, I don’t know where her mother is and for the past 3-1/2 years she has only paid $100 of court mandated child support. As a result, I am on public assistance. I want to provide a better life for my daughter and am striving to get off public assistance and on my own two feet.

I am two classes away from a college degree. As part of my financial aid package, I work part time for the college at the Ben Clark Public Safety Training Center with the college’s law enforcement and fire technology program. From career counseling and a program coordinators’ guidance, it was suggested that I become a public safety dispatcher. After investigation, I learned that I am limited in this field to solely fire technology. Without an honorable discharge, I cannot work for the California Highway Patrol or another law enforcement agency.

To assist me in my goals and provide for my daughter on my own, I ask that my discharge be upgraded to Honorable.”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR		920410 - 921117	To report to IADT
	Active:   USNR		921118 - 930507	Released to inactive
Inactive: USNR		930507 – 970202	To Enlist USN

Period of Service Under Review:

Date of Enlistment:  970203		Date of Discharge:  981015

Length of Service (years, months, days):

	Active:    01  08  13	Does not exclude lost time
	Inactive:  None

Age at Entry:  23			Years Contracted:  4

Education Level:  12			AFQT:  64

Highest Rate:  RMSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, AFEM, SSDR

Days of Unauthorized Absence:  35

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:

970203:	Applicant reenlisted for 4 years.

980616:	Applicant declared a deserter.

980904:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86:
	Specification: Unauthorized absence from 0700, 980516 to 0352, 980623 (35 days/surrendered).
	Finding: to Charge I and the specification thereunder, guilty.
	Sentence: Confinement for 30 days, reduction to RMSA.
	CA action 980908: Sentence approved and ordered executed.

980904:	Applicant to confinement.

980928:	Applicant released from confinement.

981015:	DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to the commission of a serious offense, authority:  NAVMILPERSMAN, Article 1910-142.

[PARTIAL DISCHARGE PACKAGE MISSING]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19981015 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:  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.  While he may feel that his personal problems were contributing factors, they do not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service.  His service record is marred by award a summary court-martial conviction.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.   Relief denied.  

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, a positive employment record, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   At this time, the Applicant has not provided any verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  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 18, effective 
12 Dec 97 until 29 March 2000, 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 "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