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

 
ex-AOAA, USN
Docket No. ND03-01450

Applicant’s Request

The application for discharge review was received on 20030905.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.  The Applicant did not list any representative on the DD FORM 293.  Subsequent to the applicant, the Applicant obtained representation by the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040812.  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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Dear Members of the board.  I would to say that I’m guilty of the charge of Unauthorized absence, U.A.  This is the reason I receive an Other Than Honorable Discharge.  My Absence from my Command was due to family Medical issues.  A member of my family suffers from a irregular Heart Beat which he occasionally is emitted in the hospital.  I had requested Leave or emergency Leave which was taken from me for these occurances.  Further-more, my Division Head was Alerted by myself of what was going on with me, as a result he did nothing to help me.  I’ve also requested a change of command due to the fact the my command did nothing to help a fellow Sailor.  Again I’m fully responsible for my actions but, I’m asking you to consider The reasons why.  Family!  Without me the U.S. Navy can and will go on but, Family cannot.  I had an obligation to the service but, I also have one with my Family.  To say that I’m a deserter or a slouch on the Job is false.  I have statements from employers that say otherwise.  My be I handle my problem the wrong way or have talk to the wrong people in my unit but, to say that I’m a deserter or a Slacker as my Evals state is wrong!  I’m asking you to consider and upgrade my discharge to Honorable discharge due to USS Theodore Roosevelt’s Weapons Dept Lack of interest in me to help me!  I Further State tat I took every measure to stay with the service from Duty Station transfer to branch change.  To this Day I still have the desire to serve my country with Honor!”

Issues submitted by Applicant’s representative the Disabled American Veterans:

1.  “Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Other Than Honorable (OTH) Discharge to that of Honorable.

The FSM served on active service from February 7 1990 to February 5, 1993 at which time he was discharged due to Misconduct – Commission of a Serious Offense. 

The FSM contends the current discharge is improper because he sought assistance from his Command for issues with his family that he felt needed to addressed by him, which required leave, the later of which once denied by his Command, he felt left him no choice but to go absent without leave (AWOL).

As the representative, we direct the Board members to the additional character reference statements that attest to the good character and responsible mannerism shown by the FSM since his discharge. Also ask that attention be given to the statement from local law enforcement that reflect the FSM has been in no trouble since his discharge.

This creates a need for a review of the application of the standard, for the Board to determine that the applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 (c), Par. (f) (1).

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.

                                                       Respectfully,

                                                       K_ L. G_
                                                       National Service Officer”

Documentation

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

Copy of DD Form 214.
Applicant letter detailing representation by Disabled American Veterans of 2 April 
2004
Applicant letter detailing change of address, undated
Character reference from S_ A. S_ dated 11 November 2002
Character reference from Applicant’s sister, C_ S_ dated 15 November 2002
Character reference from Applicant’s employer, D_ B_ dated 14 August 2003
Character reference from Applicant’s employer M_ M_ dated 15 August 2003
Statement of non-involvement with Civilian Authorities, Orlando Police Department dated 15 August 2003
Certificate of Admission to Embry-Riddle Aeronautical University by applicant dated January 1995.
Applicant letter submitted with copy of DD Form 214, undated.

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	900131 - 900206	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  900207		Date of Discharge:  930205

Length of Service (years, months, days):

	Active:    02  06  23
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  42

Highest Rate:  AOAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (2)	Behavior:  2.50 (2)		OTA:  2.90

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, Southwest Asia Service Medal

Days of Unauthorized Absence:  151

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

900406:	Retention Warning:  Advised of deficiency (defective enlistment, failure to disclose preservice civil involvement), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

900617:	Applicant commenced a period of UA.  Terminated on 900619.

911216:	Applicant commenced a period of UA.  Terminated on 920402.

920505:	Special Court Martial [trial dates 920505]
	Charge:  violation of the UCMJ, Article 86, 
	Specification:  On or about December 16, 1991 until on or about April 2, 1992, without authority, absent himself from his unit.
	Findings:  to the Charge and the sole specification thereunder, guilty, excepting the words “He was apprehended.”  To the excepted words, not guilty, to the Charge as amended, guilty.
	Sentence:  forfeiture of $300.00 per month for 3 months, confinement for 90 days and reduction to E-1.
	CA 920614:  Sentence approved and ordered executed, all confinement in excess of 40 days suspended for 12 months pursuant to terms of PTA.

920505:	Applicant commenced a period of UA.  Terminated on 920604.

920612:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

920628:	Applicant commenced a period of UA.  Terminated on 920711
	
000000:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

921119:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

921207:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

930115:	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 19930205 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, a procedural error or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no such errors after a review of Applicant’s case.  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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient documentation to mitigate his misconduct.  Relief denied.

The Applicant further claims inequity in that his command did not allow him the leave he needed to attend to the illness of a family member.  While Applicant’s intent may be mitigating, it does not relieve him of liability for his misconduct and resulting characterization of discharge.  Furthermore, Applicant has not provided sufficient documentation to establish to this Board’s satisfaction that his command indeed treated him inequitably.  Unless and until Applicant can establish inequitable treatment at the time of his discharge, this Board will offer no relief.  As such, 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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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), effective 15 Aug 91 until 
04 Mar 93, 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