Author: CAP
Last saved by: Department of the Navy
Company: NCPB

Docket No. ND00-00478

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

 ex-SR, USN
Docket No. ND00-00478

Applicant’s Request

The application for discharge review, received 000306, requested that the characterization of service on the discharge be changed to general/under honorable conditions and to change the RE-4 code to an RE-2 code.  The applicant requested 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 000928.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  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 (verbatim)

1.  The issue I would like mainly for the board to take into consideration is that while I understand the reason for discharge and I and the officer for summary court-martial know the conditions under which I went on authorized absence, which is indicated in the letter with this form.  I know the UA was wrong but for me to receive an re-entry code of an RE-4 to never be able to serve my country again, whether active duty or reserves for any branch of the military.  I think was unfair because people and live and time change.  My life is no longer attached with the stress while I was in the navy: My fathers cancer is gone by operation in 1999 and myself and my baby's mother have worked things out and my life is back on track.  My plea to the board is to overturn my R-4 code to an RE-2 so I can be able to serve my country again.

Documentation

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

Letter from applicant (2pgs)
.

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		None
	Inactive: USNR (DEP)	960928 - 961016	COG

Period of Service Under Review:

Date of Enlistment:  961017		Date of Discharge:  980205

Length of Service (years, months, days):

	Active:    01  00 16
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  44

Highest Rate:  SR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)	Behavior:  1.00 (1)		OTA:  2.50

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  78 

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:

971120:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86: (2 Specs), UA from unit 970920 to 971020 [30days/S]; and UA from unit 0700-1330, 971023.
	Finding:  to Charge I and specifications 1 and 2 thereunder, guilty.
	Sentence:  Confinement for 8 days, reduced to E-1.
	CA action 971202:  Sentence approved and ordered executed.

971219:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86: (2 Specs), UA from unit 971201 to 971209 [8days/S]; and Go from 1^st Division Deck Dept Space,  0730, 971212 and violation of UCMJ, Article 87: Missing Movement through neglect.
	Finding:  to Charge I and specifications 1 and 2 thereunder, guilty.
	Sentence:  Confinement for 10days, forfeiture of $600.00 pay per month for 1 month.
	CA action 971219:  Sentence approved and ordered executed.

971222:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

971225:  	Applicant advised of his rights and having elected not to consult 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.

980121:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 980121 having been an unauthorized absentee since 0700, 971226 from USS DWIGHT D EISENHOWER (CVN-69).

980201:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

980204:	Commander, Cruiser-Destroyer Group EIGHT authorized the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

980205:	Applicant UA from USS DWIGHT D EISENHOWER (CVN-69) located at Norfolk, VA at 0700, 971226.  Intention unknown.  Applicant missed ship's movement 980128.  Applicant discharged in absentia pursuant to authority: Commander, Cruiser Destroyer Group Eight LTR 1910 SER N02L/036 of 98Feb04.

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 980205 under other than honorable conditions for misconduct due to commission of a serious offense (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).

In response to the applicant’s issue, the Board found nothing in the records nor did the applicant submit any supporting documentation that showed that his personal problems were of sufficient magnitude that they could not be resolved through standard military channels or by the applicant's chain of command.  In fact, the Board found that the applicant's age, education, test scores, prior service, promotions and awards were sufficient to qualify him for enlistment.  The Board will not grant relief on the basis of this issue.

The applicant also stated that he would like his R-4 code changed to an RE-2.  The Board has no authority to change re-enlistment codes or make recommendations to permit re-entry into the Naval Service or any other of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to re-enlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment.

The following is provided for the applicant’s edification.  There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in the civilian life subsequent to leaving the Service.  However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (E).  Those factors include, but are not limited to, the following:  evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group) and certification of non-involvement with civil authorities (police records check) in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided any documentation of good character and conduct.  Therefore no relief will be granted.  The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.  

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.  In Appendix 12 of 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 5420.174C 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

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6730/A9229/A9241/A9221/