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

  ex-TMSR, USN
Docket No. ND05-00253

Applicant’s Request

The application for discharge review was received on 20041115.  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 review was conducted in Washington, D.C. on 20050519.  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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

The NDRB did note an administrative error on the original DD Form 214.  Block 24, Character of Service, should read:  “GENERAL (UNDER HONORABLE CONDITIONS)".  The Commander, Naval Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

A.) “Inequity; “My discharge was inequitable because it was based on one isolated incident in 24 months of service with no other adverse action.”
     1.) There was not enough incidents to warrant my administrative separation (general discharge), and so warrant an upgrade to honorable.  I do not feel that one Summary Court Martial over 2 year period of service is frequent.  My disciplinary record does not fairly describe my whole tour which was very good.
B.) Unsuitability;[A40.00] Counseling requirements were not met or waived, aswaulth.[A40.02]
      1.) I was being advised by the legal officer of my command (ship).  They misinformed me and convinced me to not choose an admin. board.  I had no legal representation and was only allowed one by phone before my court martial.
C.) My record of AWOL/UA indicates only minor or isolated offenses, aswauth[A92.30].
     1.) I was UA for 31 days only because when I returned 9 days before, my ship was underway and I didn’t know what to do.  I was scared, and it was my first time and I left to visit my sick grandmother my ship would not let me go on leave.
D.) The punishment I got at discharge was too harsh-it was much worse than most people got for the same offense, aswault[A94.06].
     1.) My husband J_ C_ committed the same offense and had other charges on his record and had gone to DRB before and all he received from the same CO was 45/45 restriction.  I had no prior NJP’s, CM’s, or counseling chits and was awarded Summary to Court Martial.  At the CM I was awarded 30 days brig, one month sea pay, and reduction to TMSR from TM3, that was it.  Then my CO requested Admin. Separation the next day.  
E.) I had requested & leave chits in the year 2002 and into 2003 and they were all denied even after I changed and fixed the chits to my chain of commands specifications, they were unfairly denied, aswauth.
     1.) When my grandfather got lung cancer and past away I was not allowed to go home.  When my grandmother had a heart attack and went in for surgery (she raised me) I was not allowed to go home.  Then my grandmother fell and broke her arm and hip and was internally bleeding, this is when they charged me with fraternization and said I was not going to be able to go home.  That is when I decided to go U.A. to see my grandmother.”

Applicant’s remarks, as stated on DD293:

“I feel that I was unfairly tried and overly punished for my actions.  I understand that my actions were wrong and that I should be penalized for them but I do not feel that I had deserved the extremity of my punishment.  I served 4 years of jr R.O.T.C in highschool, I was in charge of the D.E.P for a year before I graduated, I had always planned and prepared for the military it was going to be my career.  I made a grave mistake by leaving my command but I had tried everything, the PO’s in charge of me all stood up for me at my CM but it did not influence my CO.  I was an outstanding sailor, a great shipmate, and I deserved a second chance, all of my shipmates understood why I did what I did, they didn’t approve but they understood and sympathised with me.  My command was very unorganized and the people in leadership positions were not doing their job well.  I was never allowed to go on leave, my leave chits were misplaced, my LCPO had to walk me up the chain of command to approve my chit, because of the lack of organization and even then it was denied.  I was charged with fraternization when it wasn’t, I had never had any previous convictions, on the contrary I was always applauded for being determined and well rounded.  I got out of the Brig about 10 days early for good behavior but my command had not bothered to visit me so they were not there to pick me up, and when they were called to pick me up the CO sent me back to the brig and told them that I had to serve all of my time, this upset the ppl. at the brig because I had earned my freedom.  Then my command lost my record but said that they had just misplaced it and couldn’t give me a copy of it.  When I sent out for a copy of all of my records all they sent me was a copy of my DD214 I don’t know if that is standard of if my command had never recovered my file.  I don’t recall the ship ever giving me document to sign where they changed the charges as implied by the JAG Officer who reviewed my Admin. Separation so I don’t know if they changed it.  As I said before my command was very unorganized and I feel that I deserve a second chance I can only hope that you understand were I am coming from, I am not asking for a handout justa chance to prove my self to myself and to my family and a chance to correct what I messed up.  THANK YOU”

Documentation

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

Applicant’s DD Form 214  (Member 4)
Summary Court-Martial Convening Order 1-03, dated March 3, 2003
Applicant’s Charge Sheet  (2 pages )
Preliminary Inquiry Report, dated March 3, 2003  (3 pages)
Record of Trial By Summary Court-Martial  (2 pages)
Inmate’s Release Order, dated March 24, 2003
Naval Consolidated Brig Miramar Out Processing Check List, dated March 29, 2003
Naval Consolidated Brig Miramar Inventory and Receipt of Valuables, Clothing, and Personal Effects, dated March 07, 2003
Waiver of Right To Counsel Summary Court-Martial, date March 05, 2003
Summary Court-Martial Acknowledgement of Rights and Waiver, March 4, 2003  (3 pages)
Military Suspect’s Acknowledgement and Waiver of Rights, March 03, 2003
Military Suspect’s Acknowledgement and Waiver of Rights, March 01, 2003  (3 pages)
Military Suspect’s Acknowledgement and Waiver of Rights, March 04, 2003
Military Suspect’s Acknowledgement and Waiver of Rights, January 29, 2003  (4 pages)
USS PREBLE MUSTER REPORT, dated February 18, 2003
USS PREBLE MUSTER REPORT, dated February 10, 2003
USS PREBLE (DDG 88), Plan of the Day, dated January 30, 2003
USS PREBLE (DDG 88), Plan of the Day, dated January 29, 2003
USS PREBLE (DDG 88), Plan of the Day, dated January 28, 2003
USS PREBLE (DDG 88), Plan of the Day, dated January 24, 2003
USS PREBLE (DDG 88), Plan of the Day, dated January 23, 2003
USS PREBLE MUSTER REPORT, dated January 31, 2003
Ship’s Deck Log Sheet, dated March 01, 2003
Applicant’s Marriage License, dated February 6th 2003
Defense Counsel Letter to CO, USS PREBLE, Administrative Separation Proceedings, dated May 27, 2003  (2 pages)
Review of Summary Court-Martial, dated April 20, 2003  (2 pages)
Evaluation Report & Counseling Record, December 05, 2002 to June 10, 2003
CO’s Letter to Applicant, Performance Evaluation Report, Adverse Matters, dated June 17, 2003  (2 pages)
Evaluation Report & Counseling Record, February 28, 2002 to July 15, 2002
Certification of Completion, Naval Gunnery School, Torpedomen’s Mate Class “A”: School, December 06, 2001
Letter of Academic Performance at Gunnery School, dated December 06, 2001
Performance Information Memorandum, from CO, FTC, San Diego to CO, USS PREBLE, dated April 24, 2002
Authority to Assume the Title and Wear The Uniform Of a Petty Officer Third Class, dated November 16, 2002
Temporary Additional Duty Under Instruction, dated March 13, 2002
Performance Information Memorandum, from CO, FTC, San Diego to CO, USS PREBLE, dated March 25, 2002
Certificate of Appreciation, Operation Noble Eagle and Operation Enduring Freedom, dated February 26, 2002
Certificate of Recognition of Course Completion, AAA Driver Improvement Program, dated July 9, 2002

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR(DEP)		000713 - 010708	COG
	Active:     None			

Period of Service Under Review:

Date of Enlistment:  010709		Date of Discharge:  030610

Length of Service (years, months, days):

	Active:    01  11  02  (Doesn’t exclude lost time)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  62

Highest Rate:  TMSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.50 (2)		Behavior:  2.00 (2)		OTA:  3.00*

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  31

*Final evaluation not contained in service record.  Applicant provided first page of final evaluation.  (For period 02FEB28 – 02JUL15)

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).  [Note BUPERSINST 1900.8 list the authority as 3630600 instead of 3630605]

Chronological Listing of Significant Service Events:

030305:	Summary Court-Martial
	Charge I: violation of the UCMJ, Article 86:
	Specification: In that Torpedoman’s Mate Third Class B_ A. Q_ (Applicant), U.S. Navy, USS PREBLE (DDG 88), on active duty, did, on or about 1100, 30 January 2003, without authority, absent herself from her place of duty at which she was required to be, to wit: USS PREBLE (DD 88), located at San Diego, California, and did remain so absent until on or about 1800, 1 March 2003, period of 31 days.
	Charge II: violation of the UCMJ, Article 87:
	Specification 1:  In that Torpedoman’s Mate Third Class B_ A. Q_ (Applicant), U.S. Navy, USS PREBLE (DDG 88), on active duty, did, at San Diego, California, on or about 0600, 10 February 2003, through design miss the movement of the USS PREBLE (DDG 88) with which she was required in the course of duty to move.
	Specification II:  In that Torpedoman’s Mate Third Class B_ A. Q_ (Applicant), U.S. Navy, USS PREBLE (DDG 88), on active duty, did, at San Diego, California, on or about 0830, 18 February 2003, through design miss the movement of the USS PREBLE (DDG 88) with which she was required in the course of duty to move.
	Charge III: violation of the UCMJ, Article 92:
	Specification 1:  In that Torpedoman’s Mate Third Class B_ A. Q_ (Applicant), U.S. Navy, USS PREBLE (DDG 88), on active duty, did, at Del Rio, Texas, having knowledge of a lawful order issued by the chief Petty Officer Performance Review Board, to no longer fraternize with SHSN J_ L. C_, U. S. Navy, an order which it was her duty to obey, did, at Del Rio, Texas, on or about 6 February 2003, fail to obey the same by marrying SHSN J_ L. C_, U.S. Navy.
	Specification 2:  In that Torpedoman’s Mate Third Class B_ A. Q_ (Applicant), U.S. Navy, USS PREBLE (DDG 88), on active duty, did, at Del Rio, Texas, on or about 6 February 2003, violate a lawful general regulation, to wit:  Article 1165, U.S. Navy Regulations, dated 14 September 1990, by wrongfully marrying SHSN J_ L. C_, U.S. Navy.
	Finding: to Charge I, II and III and the specification thereunder, guilty.
	Sentence: Forfeiture of $50.00 per month for 1 month, confinement for 30 days, reduced to E-1.
CA action 030306:  Sentence approved and ordered executed.

030420:	Review of Summary court-martial:  SJA recommends approval of charge I and the specification thereunder, disapproval of charge II and the specifications thereunder, but approval of the lesser included offense of missing ship's movement by neglect, and disapproval of charge III and the specifications thereunder.

030527:	Defense Counsel Letter to CO, USS PREBLE, Administrative Separation Proceedings:  Applicant decided without consultation with a lawyer, waived an appearance before an administrative separation board.  TMSR Q_ (Applicant) was sent to Naval Legal Service Office, Southwest to consult with a lawyer regarding her upcoming discharge.  She did not have a copy of processing notification indicating waiver of rights.  Applicant has informed me, Defense Counsel, that she did not intend to waive her rights to an administrative separation board and that LTJG S_, the legal officer and YN1 B_ gave her the idea that the result would be no different whether she waived the board or not.  This is clearly false.  They also gave her the impression that the administrative separation board would be similar to the Summary Court-Martial, which is also completely false.
	This letter hereby gives notice that TMSR Q_ (Applicant) revokes waiver of administrative processing rights and requests an administrative separation board.  My client has be advised that failure to allow revocation may afford her the opportunity to file an Article 138 complaint.  TMSR should have been given access to a lawyer before signing the processing notification.

030610:	DD Form 214:  Applicant discharged with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Complete discharge package unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030610 with a general (under honorable conditions) for misconduct due to commission of serious offense - absent without leave - 30 days or more (A and B).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (E).

Issue A.  Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  The Applicant contends that she served the United States well and she is entitled to an upgrade.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  A general discharge is warranted for behavior not sufficiently meritorious to warrant an honorable discharge.  The Applicant’s service was marred by an unauthorized absence for a period of 31 days, two missing ship's movements, and allegations of fraternization.  This misconduct resulted in a summary court-martial conviction for violations of UCMJ Articles 86, unauthorized absence, 87, missing movement, and 92, failure to obey order or regulation.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of her characterization of service.  Relief is not warranted.

Issue B.  The Applicant implies that her administrative separation processing was improper because she was misinformed by her chain of command.  The Applicant bears the burden of establishing any of her claims through the presumption of substantial and credible evidence.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that anyone in the chain of command misinformed her in the administrative discharge processing.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Relief denied.  

Issue C and D.  The Applicant contends her disciplinary problems were in part the result of the need to visit sick relatives.  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.  It must be noted that many members of the Navy endure hardships similar to those of the Applicant.  It must further be noted that the vast majority of those members do not commit misconduct as a result of said hardships.  Despite their hardships, these sailors are still able to serve honorably and therefore earn their honorable discharges.  In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  Despite the Applicant's claims of hardship, the NDRB found that the Applicant's service was equitably characterized.  Relief denied.

Issue E.  The Applicant implies that her discharge was inequitable because another servicemember was punished less harshly for similar misconduct.  The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a serious offense, that separation was appropriate, and that a general (under honorable conditions) discharge was warranted.  As such, relief is 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.  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 02 until Present, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 86, for unauthorized absence for a period in excess of 30 days, if adjudged at a Special or General Court-Martial.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023