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Docket No. ND04-00014

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

ex-ADAA, USN
Docket No. ND04-00014

Applicant’s Request

The application for discharge review was received on 20031001.  The Applicant requests the characterization of service received at the time of discharge be changed to general (under honorable conditions) and the reason for the discharge be changed to hardship.  The Applicant requests a personal appearance discharge review before a traveling panel closest to Hammond, Louisiana.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area.  The 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 20040712.  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 1910-142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  Four continueous years of service before incident occured.
2.	I talked to the ship’s psychiatrist while my problems persisted.
3.	I went U.A. because my wife left me and I needed her.  She left me.   I got her back and then she left me again.
4.	I love my country.  I would do anything to be able to help my country again.  I loved every minute I was in the service.
5.	I have been going to college since I was discharged.
6.	I have been trying to recrute people on a daily basis into some form of military duty.
7.	My future will perish without the proper discharge.
8.	I want to receive my degree and become an officer.”

Documentation

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

Ltr frm Applicant, unsigned, undated

Applicant stated that college transcripts were attached to application but none were found.

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR(DEP)		970422 - 970806	COG
	Active:    USN 			970807 – 010116	HON

Period of Service Under Review:

Date of Enlistment:  010117		Date of Discharge:  020703

Length of Service (years, months, days):

	Active:    01  05  18
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  35

Highest Rate:  AD3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (1)	Behavior:  1.00(1)		OTA:  1.50

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, AFEM, SSDR (2), MUC (2), CGUCR,  GCA, ER

Days of Unauthorized Absence:  106

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:

010117:	Applicant reenlisted for 4 years.

010227:	Applicant went on Unauthorized absence at 0700.

010320:	Applicant missed movement.

010331:	Applicant declared a deserter.

010429:	Applicant apprehended by civilian authorities.

010502:	Applicant was returned to his command at 2051 (62 days/apprehended).

010618:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86:
	Specification: Unauthorized absence from 010227 to 010502.
	Charge II: violation of the UCMJ, Article 87:
	Specification: Miss shipment’s movement 010320.
	Sentence: Restriction and extra duty for 13 days, reduced to ADAN.
	CA action 010626:  Sentence approved and ordered executed.

020401:	Applicant went on Unauthorized absence at 0800.

020516:	Applicant surrendered at 0545, 020516 (44 days unauthorized absence).

020521:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86:
	Specification: Unauthorized absence (020402-020515) 45 days lost time.
	Sentence: Restriction and extra duty for 30 days, reduced to ADAN.
CA action not found.

020521:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidence two lengthy periods of unauthorized absence.

020521:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

020614:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to Commission of a Serious Offense.  Commanding Officer’s comments: Aviation Machinist’s Mate Airman Apprentice B_ (Applicant) has shown a pattern of being unwilling to conform to military standards.  He has commenced two lengthy periods of unauthorized absence and was awarded Summary Court-martial for each.  He was given his notification of rights and waived right to Administrative Board.  Airman B_ (Applicant) has disregarded the needs of the Navy and proven his inability to conform to the conduct expected of Naval Service members.  Airman B_ (Applicant) will continue to be an administrative burden at this command and I strongly recommend that he be separated from the Naval Service under other than honorable conditions.  The concerns of the Chief of Naval Operations and Commander in Chief, U.S. Atlantic Fleet have been taken into consideration in the decision to recommend an other than honorable discharge.

020618:	Commander, Navy Region, Mid-Atlantic 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 20020703 under other than honorable conditions for misconduct due to Commission of a Serious Offense (A & 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).

Issue 1.  The Applicant contends that his discharged should be changed to general because of his “four continueous years of service” before the “incident.”   The Applicant received an honorable discharge for his service from 970807 – 010116.  The characterization of his discharge on 020703 was based on his performance from 010117 until 020703.  When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by two summary courts-martial for unauthorized absences totaling 106 days.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

2-3.    The Board found that the Applicant’s contentions that he talked to the ship’s psychiatrist and that he “went UA” because of marital problems did not mitigate his misconduct.  While he may feel that his personal problems were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief on this basis is denied.

4-6.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural error or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, is considered.  The applicant provided no documentation of his post-service.  The applicant's efforts need to be more encompassing than assertions of educational quests.  For example, the applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service and certification of non-involvement with civil authorities, 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.  

7-8.  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted.  There is no evidence of impropriety or inequity in the Applicant’s discharge.  The Applicant’s misconduct is clearly documented.  Therefore, relief is denied.

Concerning reenlistment or commissioning, the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other of the Armed Forces.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps.  Reenlistment policy of the naval service is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

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), Change 31, effective 
25 Jan 01 until 21 Aug 02, 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 5420.174C 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.
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