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

ex-RM3, USN 
Docket No. ND03-00996

Applicant’s Request

The application for discharge review was received on 20030521.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record 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 20040423.  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:

“1.  Overturning Other than Honorable Discharge.

I am writing this letter in reference to the discharge I received from active duty.  I joined the U.S. Navy in July 1988.  I started off as an E-3 Radioman.  I had some idea of what to expect from the military because I participated in the J.R.O.T.C. program at my high school.  Moving up in rank was no problem for me because I have initiative, and I learn quickly.  During my time in the service I’ve traveled and I’ve learned some very valuable lessons about hard work, discipline, and honor.  I received several good conduct medals, and numerous citations for my dedication and hard work.  I was the first RM3 to become C.W.O. qualified at NCTS San Diego.  This was just some of my qualifications.  Being an E 4 and married with 2 children I had to grow up quickly, and take responsibility of my life in order to provide for my children.  Years go by; and I get sent to Yokosuka Japan.  This is around the time things start getting crazy.  My wife and I separate after 3 years of marriage, and then I get sent over seas.  I arrive in Japan serve my time completed 3 West Pac’s.  I received orders to Bremerton Washington.  By this time I am an RM2 I have taken the test several times, and missed it by just a few points.  When I arrive to Washington things are fine.  I have not had any major problems.  I may have had a few counseling’s in the past, but that was it.

I entered a relationship with a young woman, who wasn’t right for me.  We had a few difficulties in the beginning, but I overlooked them.  We had a child together a baby boy.  Once the baby came, and my ship started getting underway, and conducting various operations the relationship started to fade.  After 10 years of being responsible, being in charge, having people look up to me, I threw in all away in a moment of weakness.  As I look back I can see where I went wrong.  I can not blame anyone for the outcome of my career, or for being with a woman who called the police on me for revenge purposes.  I did it all to myself for making poor decisions and staying in that situation which made things worse.  The reason I was found guilty is not because there was any hard evidence of violence, it was because of my lack of knowledge of the judicial system.  If you check my record the only time I have ever been in any trouble with the law was in Washington.  I took a plea (deferred prosecution) so that I can get out of jail; get back to work, and to deal with the situation.  The way deferred prosecution works is like probation.  The catch is if you have any similar incidents you are automatically found guilty, if you have no similar incidents it’s off your record.  Once the police was called on me for the second time, I was automatically found guilty.  Even if the charges were dropped it’s still a similar incident.  I also appealed the NJP from captain’s mast, but nothing changed.  That’s been 4 years now.  I now have 5 children two from my ex-wife two from the woman that called the cops on me and one from my current relationship.  I am trying to go back to school to prepare for my children’s future.  There have been no further incidents.  I now live in Miami Florida where I was born and raised.  I have no problems with the authorities or anyone else.  The only thing I ask is for an honorable discharge.  Out of the 10 Years of dedicated service I feel that I should at least be given a second chance.  I ask that you please grant me the honorable discharge, so that I can use my G.I. Bill to continue my education, to get my V.A. loan, to get my benefits, and live my life from this day forward.  Please consider this letter while making that decision.  Thank You and GOD bless.”

Documentation

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

Certificate of Eligibility from Department of Veteran Affairs
NJP Appeal Denial Letter 
NJP Appeal Letter from Applicant (partial)
Unauthorized Absence Information (2 pages)
Copy of Report and Disposition of Offense(s)
Copy of Preliminary Inquiry Report
Copy of Court Order from Tacoma Municipal Court
Copies of Evaluation Report & Counseling Records (4 pages)
Reference Letter from Applicant’s ex-wife dated November 15, 2002 
Reference Letter dated January 15, 2003-  
Reference Letter from Applicant’s mother dated January 14, 2003
Reference Letter from dated January 18, 2003
Reference Letter dated January 16, 2003
Character Reference Letter dated November 26, 2002
Letter of Recommendation from W___ S____
Letter of Recommendation from D___ W___
Copy of Police Record Check
Copies of Letter of Commendation (2)
Copy of Letter of Congratulation
Copies of Letters of Commendation from CO, USS MOBILE BAY (CG 53) (2)
Copy of DD Form 214.

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	880514 - 880717	COG
	Active:   USN 			880718 - 920113	HON
	Active:   USN			920114 – 960430	HON

Period of Service Under Review:

Date of Enlistment:  960501		Date of Discharge:  990204

Length of Service (years, months, days):

	Active:    02  09  00
	Inactive:  None

Age at Entry:  26			Years Contracted:  4 (5 months extension)

Education Level:  12			AFQT:  42

Highest Rate:  RM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (2)	Behavior:  2.00 (2)		OTA:  3.07

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC, NAVY”E”(2), GCM(2), NDSM, AFEM, SASM, SSDR(3)

Days of Unauthorized Absence:  26

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:

960501:	Reenlisted onboard USS CALIFORNIA for 4 years.

971105:	Page 13 for Criminal Assault from USS CALIFORNIA (CGN-36)(Extracted from Report of Disposition under DD Form 293)

971107:	Page 13 for Absent Unit from USS CALIFORNIA (CGN-36)
(Extracted from Report of Disposition under DD Form 293)

981019:	NJP for violation of UCMJ, Article 86: Absence from unit on or about 0715, 980918 until on or about 0200, 981014 (26days), violation of UCMJ Article 87: Missing movement.
	Award:  Forfeiture of $100.00 pay per month for 2 months, restriction for 14 days.  Appealed on 981029.  Appealed denied 981106 (Extracted from Case file under DD Form 293).

981124:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 981124 having been an unauthorized absentee since 0730, 981123 from USS CALIFORNIA (CGN 36).

981202:	Report of Return of Deserter.  Applicant surrendered to military authorities on 981201 (0730) at PSNS Bremerton, WA.  Returned to military control 981201 (0730).  Retained onboard for disciplinary action.

NO DISCHARGE PACKAGE AVAILABLE.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990204 under other than honorable conditions for misconduct due to commission of a serious offense (A).  In the absence of a discharge package, the Board presumed regularity in the conduct of governmental affairs (B) 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 (C and D).

Issue 1:  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.  A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor.  The Applicant’s service record is marred by his involvement with civilian authorities and by the award of nonjudicial punishment (NJP) for unauthorized absence and missing ship’s movement.  Relief denied.

The NDRB did note an administrative error on the original DD Form 214.  Block 18 did not reflect the Applicant’s previous eight years of honorable service he may use to obtain veteran’s benefits.  The Board notified Commander, Naval Personnel Command, Millington, TN and recommended the DD Form 214 be corrected or reissued.   

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, an alcohol-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   

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