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

 

 ex-FN, USN
Docket No. ND03-00904

Applicant’s Request

The application for discharge review was received on 20030502.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to convenience of the government.  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 20040408.  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 and the reason for discharge was discovered by the NDRB.  The Board’s vote was unanimous that the character and reason for discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I know that my actions were wrong and I’m very sorry, no excuse is good enough for going UA.  However, December 5, 2000 I was assaulted by a petty officer named MM3 B___, I was punched in the mouth because I would not suck his private part.  I reported it and that is when my career went down hill.  I was appointed a JAG LT. K___ who represented me at trial.  At the hearing my LPO MM1 D___ sat on the side with MM3 B___ has his representative from the USS JOHN F. KENNEDY CV67, MM1 D___ was suppose to sit with me as my acting LPO from the CAT shop.  About 1 week after the hearing my LPO MM1 D___ sent me down to the mess deck, which he was told not to.  I was the only female in the shop at the time and he told me that he never had to deal with females before in his previous shop.  When I would go to him and talk, afterwards he would go and tell the males in the shop (after I left) whatever we talked about.  When MM3 B___’s trial came and I had to appear in court MM1 D___never told me what date or what time I had to be there so my case was dropped.  MM3 B___ was also on trial for someone else that same day and was convicted, he was given 15-30 years in levingworth.  3 months later when I came back to my shop.  MM1 D___ worked me harder that the males, he threw out all of my qualifications I had before I came back to my shop.  When I was sick he would not let me go to medical, MM1 D___ told me to stop acting so sweet and take my sickness like a man.  I was not allowed to eat at certain times or not at all.  I tried to talk to the chaplain, chiefs, the XO, other petty officers and no one could help me.  MM1 D___ kicked me out of the Cat shop because he did not want to deal with me anymore and sent me to another shop to work.  After I was there for 1 month legal on the USS JOHN F. KENNEDY wanted to charge me with unlawful use of marijuana, which I have never done in my life.  I could not take anymore pressure, nor could I take everything that was happening to me at that time, so I went UA.  I did not want my military career to end this way.  I feel as though I had no choice.  During the time I was UA, I was working and never did I get into trouble.  My work evaluation were average or above average.  I would like to have my reentry code changed and/or my character of service changed to honorable.  The military is all that I know, all that I have dreamed about since I was a little girl, to follow in my fathers foot steps and make him proud.  I was in Temple Univ’s ROTC program before I enlisted and maintained a G.P.A. of a 4.0. I love the military lifestyle and I would like to comeback in to make a career.  I have learned through my mistakes and my actions.  It hurts me everyday to know how much of a failure I was to my country, the Armed Forces and to my father.  I asking the DRB board to give me another chance to serve and defend my country, so that I can be proud again to say “I’m serving my country in the Armed forces.”

“1.  My average conduct and efficiency rating/behavior and proficiency marks were good (or pretty good): I have never been to a XO1, Captain’s Mass, or put on restriction.  I have always done what higher authority asked of me with no questions asked.”

“2  I have been a good citizen since my discharge: I have not been in any trouble with the law, I’ve been working in my community to help keep trash up.  I have been working with children.”

“3.  My record of AWOL/UA indicates only minor or isolated offenses: The reason I went UA is only because of what I was put through I was scared to go back because I did not want to be charged for things that I did not do.”

“4.  Certain other problems impaired my ability to serve: A lot of people knew my assaulter and wanted to beat me up or had it in for me because I reported MM3 B___.”

“5.  I tried to serve and wanted to, but just couldn’t or wasn’t able to: I tried to stick with it and work things out for my career, but no matter how hard I tried things just got worst. I wasn’t able to do my job or serve my country.”

“6  I had tried to apply for compassionate reassignment but was unfairly denied or told to forget it:  I went to several petty officers asking how I could get a compassionate reassignment and they told be the USS JOHN F. KENNEDY needed fireman and they would not approve the form, so I should forget it.”

“7  I had tried to apply for a hardship discharge but was unfairly told to forget it:  I asked the chaplain for a hardship discharge because of what I was going through and he told it was to late and there was nothing he could do.”

“8.  Other reason: My acting LPO at the time MM1 D___ and my assaulterMM3 B___ were good friends. When I turned in MM3 B___, my LPO MM1 D___ had it for me and started treating me unfairly.”

Documentation

In addition to the service record, NO DISCHARGE PACKAGE AVAILABLE, the following additional documentation, submitted by the Applicant, was considered:

Character Reference Letter dated April 22, 2003 (3 pages)
Request for Criminal Record Check
Child Abuse History Clearance
Travel Orders
Discharge Information (Computer Printout)
Travel Voucher
Travel Voucher Summary (2 pages)
Copies of DD Form 214 (2)
Letter from Applicant dated February 9, 2004

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	000710 - 000724	COG

Period of Service Under Review:

Date of Enlistment:  000725		Date of Discharge:  020828

Length of Service (years, months, days):

	Active:    01  01  09
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  31

Highest Rate:  FA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  353

*  No Marks Available for review

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority:  NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

Chronological Listing of Significant Service Events:

010521:	NAVDRUGLAB [Jacksonville, FL], reported Applicant’s urine sample, received 010516, tested positive for [THC] [Extracted from case file].

010531:	Charge Sheet:  Charge I: Violation of the UCMJ, Article 86: (2 Specifications), Specifications 1:  Did on or about 010514 , without authority, absent herself from her unit, to wit: USS JOHN F. KENNEDY, located at Naval Station Mayport, Florida, and did remain so absent until 010515; Specification 2: Did on or about 010519 , without authority, absent herself from her unit, to wit: USS JOHN F. KENNEDY, located at Naval Station Mayport, Florida, and did remain so absent until 010520.  Charge II: Violation of the UCMJ, Article 112a: Did within the territorial limits of the United States, on or about 010512, wrongfully use Marijuana [Extracted from case file].

010731:	Applicant refused to sign Pretrial Restriction Order/Restriction in Lieu of Arrest [Extracted from case file].

010731:	To UA [Extracted from DD Form 214 Block 29].

020721:	Apprehended by Bensalem Township Police PA [Extracted from case file].
 
Applicant’s discharge package is missing.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020828 under other than honorable conditions in lieu of a trial by court-martial (A and B).  In the absence of a discharge package, the Board presumed regularity in the conduct of governmental affairs (C) and, after a thorough review of the records, supporting documents, facts, and circumstances unique to this case, found that the discharge was proper and equitable (D and E).

Issue 1, 3-9:  While she may feel that her 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 she was unsuitable for further service.  The Applicant’s service record clearly documents a lengthy period of unauthorized absence (353 days), which normally would result in a punitive discharge.  In the absence of a discharge package, it is presumed that the Applicant requested an administrative discharge under other than honorable in lieu of a trial by court-martial and was fully advised of the implications of her request and she understood that if discharged under other than honorable conditions, it might deprive her of virtually all veteran’s benefits based upon her current enlistment and might encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  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 consider her discharge proper and equitable.  Relief denied.

Issue 2:  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, a drug-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   At this time, the Board determined that the documentation submitted by the Applicant does not mitigate her 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), re-issued October 2002, effective 22 Aug 2002 until Present, Article 1910-106 (formerly 3630650), SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B.  A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article 86, unauthorized absence for a period more than 30 days, upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-Martial.

C.  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.  

D.  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.

E.  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