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Docket No. ND02-00806

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

 ex-AA, USN
Docket No. ND02-00806

Applicant’s Request

The application for discharge review, received 020513, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The Applicant requested a personal appearance hearing discharge review before a traveling panel closest to Altoona, PA.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearings are held in the Washington, DC Area.  The Naval Discharge Review Board (NDRB) also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030214.  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, as submitted

1.  I was 19 when I went UA.  I was in transit to my A School and I got word my only gramother was in critical cond.  So I went home knowing what I was doing was wrong.  When I got home my oldest sister was in trouble too.  I put my family before myself, I know it was dumb.  I met my wife shortly after I got home.  When I got married I was gonna turn myself in.  We had our 1^st baby Nov 7, 97 and he was 2 months Premature.  He spent sometime in the Hospital.  I got in touch with a Petty Off In Pensacola in 99 and I was gonna turn myself in.  Everytime I called them they kept pushing the date back to turn myself in.  I Dec of 99 I talked to Lt CmR he said spend Christmas with your family and I'll be in touch in 2000.  I got Pre discharge paper on Feb 2000.  I sent them Back and received my DD 214 on 2000 15 03.  I am asking for this meeting in order to plead for a second chance.  What I did was in case of lack of maturity and age.  I feel that I have made up for the maturity and age.  I have a son and a daughter and I would per a proud Parent if they could see their dad in there service again.  I know what I lost and I would love a second chance.  I am a mature Loving father who wants nothing more than to provide a life for my children. Thank you.

Documentation

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

Copy of DD Form 214
Letter from Applicant, undated 
Reference Letter from C_ A_, undated
Reference Letter from C_ K_, undated
Character Reference Letter from T_ J. H_, SFC, PAARNG, dated April 19, 2002
Request for Waiver into PAARNG, dated September 15, 2001

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	960531 - 960720	COG
	Active:   USN 		None

Period of Service Under Review:

Date of Enlistment:  960703		Date of Discharge:  000315

Length of Service (years, months, days):

	Active:    00  03  24 (Does not count lost time)
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (12 month extension)

Education Level:  12			AFQT:  52

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  1219

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:

000118:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

000118:	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.

000127:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense in violation of Article 86 of the UCMJ 1 specification of unauthorized absence in excess of 30 days.  Commanding Officer’s comments (verbatim):  [Airman Recruit P_ became an unauthorized absentee from this command in October 1996.  This command transferred from Millington, Tennessee (1 November 1999) to Pensacola, Florida.  Airman Recruit P_ became an unauthorized absence during the transfer of students and staff and was not reported as an unauthorized absentee nor deserter.  He was lost in the system during the transfer.  He was located in December 1999, had married and has two children and a job.  He admitted to being an unauthorized absentee and was very much interested in resolving his unauthorized absence.  The appropriate papers were sent for his signature and received.  He failed to sign the box "My response to this notice is complete," however, he did complete the Letter of Notification.  In my opinion, he has no potential for further useful naval service; therefore, I recommend separation from the naval service with a discharge under Other Than Honorable conditions by reason of misconduct.   It is further requested that he be discharged in absentia.]

000209:	Chief of Naval Education and Training authorized 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 in absentia on 000315 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:  The NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Therefore, the Board cannot grant relief on this issue.

The Board’s charter limits its review to a determination on the propriety and equity of the discharge.  The Applicant’s discharge was found to be proper and equitable as issued.  Although the Applicant claims immaturity and family responsibilities as the reasons for his unauthorized absence, the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives that regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  The record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  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 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, 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.  After a complete review of the record, including the evidence submitted by the Applicant, the Board determined that the Applicant’s discharge was proper and equitable and that his evidence of post service accomplishments was found not to mitigate the misconduct for which he was discharged.  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 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 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

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

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:   A6750/A9301/A9307/A9445/A9221