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

   ex-FR, USN
Docket No. ND05-00301

Applicant’s Request

The application for discharge review was received on 20041130.  The Applicant requested the characterization of service received at the time of discharge be changed to general under honorable conditions.  The Applicant requested a documentary record review.  The Applicant listed the American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050224.  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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Dear Sirs,

I am writing you this letter in the hopes that you will look favorably on my request for an upgrade of my military discharge from the armed forces of the United States of America in the year of 1994.  I received an other than honorable discharge from military service that I feel should have been a general discharge due to the circumstances regarding my release from active duty.  At the time I had requested to be released from active duty I was going through a very messy divorce from my ex-wife.  I had went U A for some time but returned and excepted my punishment for the infraction I committed.  I then requested help from my command but I feel I was givin little help with my situation .  The command which at the time was on the USS John Young DD973 sided with my ex-wife therefore I feel I was not being givin the adequate help.  Also at the time I filed a discrimination case against a officer aboard my ship due to a racial comment I overheard him say.  But being the fact that the command was already upset at me for my infraction and the divorce and also the discrimination case that I had filed, it all played a big factor in the discharge I received.  I was a very excellent sailor with performance evaluations of 3.8 to 4.0 with the decorations of Meritorious Unit Commendation, National Defense, Southwest Asia with 2 bronze stars, Sea Service with l bronze star and Rifle Marksmen Ml4.  While I was stationed aboard the USS Worden CG-18 prior to it being decommissioned , we were involved in an attack on Iraq.

Upon my discharge from military service I finally was granted my divorce from my ex-wife.  I returned to Hawaii to resume my civilian life but remained proud of the fact that I served my country from the likes of people like Saddam Hussein.  I have worked various jobs finally finding the job I had been trained for prior to joining the military.  I have remained virtually crime, traffic and problem free for the duration that I have been released from active duty.  I am married again and raising 5 children plus paying child support for 2 more.  I currently work for the local newspaper while my wife works for a major grocery supermarket chain.  Our children are honor role students in there perspective schools while my oldest daughter attends college in California.

I would deeply appreciate it if you would look at the situation that I was encountering at the time of my military service in the hopes of upgrading my discharge from active duty.  I feel if I was givin the proper help and consideration I would have finished my enlistment and would have been promoted to the highest rank my 4 years would have let me achieve and been issued a honorable discharge.  I feel that a general under honorable would be sufficient due to the circumstances surrounding my discharge.

If you have any questions in regards to this letter feel free to call me at (Applicant’s telephone numbers deleted).  Thank you for taking all of these things into consideration.  Thank you and God Bless America.

Sincerely,
(signed)
P_ A. T_ (Applicant)”

Additional issues submitted by Applicant’s representative (American Legion):

2.  “Equity Issue:  Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174D, Part V, Paragraph 503, as it pertains to post-service conduct, in assessing the merits of this application. 
_______________________________________________________________________

In accordance with Title 32, CFR, Section 724.166 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to the Applicant’s petition.

Review of the available records reflect that this former member maintained satisfactory performance and conduct markings with a 3.90 OTA and earned the NDSM, SASM (2), SSDR (2) and MUC.  He was convicted by SCM on 940902 for VUCMJ, Article 86.  Following due process notifications, he discharged on 941027 Under Other Than Honorable Conditions due to misconduct as authorized by NAVMILPERSMAN, Article 3630600.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because it is too harsh in light of his overall service record.  He has not submitted any additional documentation beyond copies of his service record for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by Title 10, USC, Section 1553 and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

Applicant’s DD Form 214
Applicant’s Enlisted Performance Evaluation Report (2)
Applicant’s Enlisted Performance Record
Plan of the Day, dated June 22, 1993

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	910712 - 911108	ELS
		    USNR (DEP)	920114 - 920810	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  920811		Date of Discharge:  941027

Length of Service (years, months, days):

	Active:    02  00  23	(Accounts for lost time.)
	Inactive:  None

Age at Entry:  31			Years Contracted:  4

Education Level:  12			AFQT:  42

Highest Rate:  FN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (2)		Behavior:  3.90 (2)		OTA:  3.85

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM (2), SSDR (2), MUC

Days of Unauthorized Absence:  53

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

940703:	Applicant to unauthorized absence 0700, 940703.

940803:	Applicant declared a deserter.

940826:	Applicant from unauthorized absence 0930, 940826 (55 days/surrendered).

940902:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86:
	Specification:  … without authority absent himself from his unit …
	Finding:  to Charge I and the specification thereunder, guilty.
	Sentence:  Restriction for 53 days, reduction to E-1.
	CA action 940902:  Sentence approved and ordered executed.

940924:	Applicant notified of consideration for an administrative separation by reason of misconduct due to commission of a serious offense as evidence by your action of unauthorized absence for over 30 days.  If separation is approved, the characterization of service may be other than honorable.

940924:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation and to submit a statement.

941003:	Applicant’s written statement to the Chief of Naval Personnel, PERS-83.

941004:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to absent without leave (30 days or more).  Commanding Officer’s comments (verbatim): Up until his unauthorized absence of 53 days, FR T_ (Applicant) performed well in the engineering department on USS JOHN YOUNG (DD 973).  He reported aboard in January 1994, half way through a Persian Gulf deployment.
He never approached his division officer concerning any personal problems until early May 1994.  FR T_ (Applicant) was sent to the command’s legal officer regarding divorce procedures in late May 1994.  The legal officer notified FR T_ (Applicant) about the weekly divorce seminars held every Monday at the local NLSO legal assistance office and recommended he attend the seminar and talk to a legal assistance lawyer.  FR T_ (Applicant) was told to come back to the legal officer if the seminar and lawyer did not answer all his questions or if any other problems arose.  
FR T_ (Applicant) was given 30 days leave (03 June to 03 July 1994) for the express purpose of sorting out his family difficulties.  T_ (Applicant) has a wife and two children who live in the Los Angeles area from whom he has been separated from for a long time.  These individuals are the only dependents listed on his dependency application form (page 2) in his service record.  Additionally, T_ (Applicant) has told the command he has a girlfriend and two children in Hawaii.  It was precisely because of his performance and significant family problems that FR T_ was authorized thirty days leave prior to the ship entering a major DSRA period.  He never called the command to request a leave extension.  Instead, FR T_ (Applicant) decided not to come back to the ship.  He was an unauthorized absentee for 53 days before turning himself in to the command.
Any unauthorized absence over 30 days can be awarded with a punitive discharge at a special or general court martial, thus it is classified as a serious offense.  This serious offense shows a complete lack of responsibility, sense of commitment, and a willingness to break his obligation to the naval service.  All members of the naval service trust and rely upon their shipmates to do their job and handle their responsibilities.  Mission accomplishment and safety at sea hinge upon this trust.
I cannot trust any person who willingly goes UA for almost two months.  When this person is needed in a critical situation, he might not be there.  FR T_ (Applicant's) actions have already shown he is not worthy of trust and that he may not be there when he is needed.  For this reason, I believe FR T_ (Applicant) should be separated from the naval service.  The characterization of this discharge should be other than honorable.
In his statement, FR T_ (Applicant) alleges racial discrimination and references two other cases of service members who have been administratively separated from JOHN YOUNG.  He is not well informed of all aspects of those cases and only possesses mess decks gossip knowledge of what really happened.  The first case involved a sailor who was caught bringing back steroids from Mexico.  His case was processed at an administrative board.  The convening authority pursued an other than honorable discharge, but the board recommended a general discharge.  The second case involved a sailor processed for commission of a serious offense and for a pattern of misconduct.  This sailor had two UA’s (one for 20 days and one for 8 days) and one case of failing to obey an order when he did not clean a compartment.  Neither UA offense was long enough to be considered a serious offense.  The serious offense was this sailor’s failure to obey the order.  In this case, overwhelming family problems with a drug dependent wife who neglected two children of less than 4 years of age, both during and after deployment, played a direct role in the sailors poor performance.  I made the recommendation for a general discharge in this case and it was supported by the Bureau of Personnel.  In summary, I believe the facts clearly show that FR T_'s (Applicant's) perception of discrimination is unfounded.  My actions have never been racially motivated and I have processed FR T_'s (Applicant's) case strictly on its own merits.
FN T_ (Applicant) also insinuates in his statement that I told him I would “give him a good write up” but “chanced my mind” and would not endorse a general under honorable conditions discharge.
To be clear, on 16 Sep I held a closed mast with FN T_ (Applicant) (witnessed by the XO).  At this mast, I told FN T_ (Applicant) he was being processed for administrative separation and advised him of his right to petition an admin separation board for a general under honorable conditions discharge.  I told him that if he waived his right to a board, I would note his solid performance in the few months before his UA, but that I was recommending an other than honorable discharge.  I have done just that; the first sentence of para 14 states that he performed well.  I have never “changed my mind” over the handling of this case and have been extremely forthright with FN T_ (Applicant) every step of the way.”

941017:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19941027 under other than honorable conditions for misconduct due to absent without leave (30 days or more) (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issues 1 & 2:  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 his family situation and pending divorce were contributing factors, they do not mitigate the Applicant’s disobedience of the orders and directives regulating good order and discipline in the naval service.  His service record is marred by conviction at a Summary Court-Martial for being in an unauthorized absence status for 53 days during which he was declared a deserter.  For the Applicant’s edification, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 86, unauthorized absence for a period in excess of 30 days, if adjudged at a Special or General Court-Martial.  It must be noted most Sailors serve honorably; thereby, earning their honorable discharges.  In fairness to those Sailors, commanders and separation authorities are tasked to ensure the undeserving receive no higher a service characterization than is due.  Finally, the record does not support the Applicant’s allegations that he was discriminated against or that his command did not offer him “the proper help and consideration” regarding his personal and family issues.   In fact, the Applicant “was given 30 days leave (03 June to 03 July 1994) for the express purpose of sorting out his family difficulties.”  An upgrade to general (under honorable conditions) would be inappropriate.  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 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, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   At this time, the Applicant has not provided sufficient 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 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT. 

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 II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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

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

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