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

ex-AMHAA, USN
Docket No. ND04-00706

Applicant’s Request

The application for discharge review was received on 20040324.  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 discharge review was conducted in Washington, D.C. on 20041029.  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 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I BELIEVE MY OTH DISCHARGE IS UNJUST BECAUSE OF THE LOST OF MY UNCLE TO TERMINAL CANCER AND THE DISCORVERY OF MY AUNT TO HAVE TERMINAL CANCER.  MY UNCLE AND AUNT WERE MY PARENTS; THEY RAISED ME.  AFTER MY UNCLE DIED DEC 8, 1996 AND THE DISCOVERY OF CANCER IN MY AUNT A COUPLE OF WEEKS LATER, I REQUESTED LEAVE TO SPEND TIME WITH MY AUNT BEFORE HER LAST DAYS BECAUSE I WAS NOT ALLOW TO GO ON LEAVE TO BE WITH MY DIEING AUNT, I WENT AWOL. I USED THIS TIME ABOUT 28 DAYS TO DRIVE FROM NAS LEMOORE, CA TO KINSTON, NC TO BE WITH MY DIEING AUNT. AFTER ARRIVING IN KINSTON, MY AUNT BEGIN TO GET BETTER AND STRONGER. WHEN I FELT THAT MY AUNT WAS DOING THE BEST SHE COULD, I DROVE BACK ACROSS THE COUNTRY TO NAS LEMOORE. ONCE BACK ON BASE, I WAS GIVEN A COUPLE OF DRUG TEST; YES I PASSED. I WAS ALSO GIVEN TIME TO TALK TO MY COMMANDING OFFICER TO EXPLAIN MY PROBLEM BEFORE GOING TO CAPTAIN’ S MASK. I EXPLAINED TO HIM THAT I HAD JUST LOST MY UNCLE TO CANCER A FEWS WEEKS BEFORE AND MY AUNT HAD JUST DISCOVERED THAT SHE HAD TERMIAL CANCER. I ALSO TOLD HIM HOW I HAD APPLIED FOR LEAVE, WHICH I HAD THE TIME ON THE BOOKS, BUT IT WAS DENIED. I FELT THAT I HAD NO OTHER CHOICE BUT TO GO AWOL BECAUSE I COULD NOT LET AUNT DIE WITHOUT BEING THERE WITH HER. AT MY CAPTAIN’S MAST. I WAS ASKED IF I WANTED OUT OF THE NAVY. MY ANSWER WAS NO. I ONLY WANTED TO SPEND TIME WITH MY DIEING AUNT. AT THIS TIME, I WAS GIVEN 45 DAYS RESTRICTED DUTY AND REDUCTION IN RATE TO E-2.

I WAS ALSO TOLD THAT I WAS BEING PUT OUT OF THE NAVY. WHILE I WAS WASTING THE TAXPAYERS DOLLARS IN RESTRICTION, MY AUNT WAS GOING BACK AND FORTH FROM THE HOSPITAL. I FELT LIKE ALL MY COMMANDING OFFICER WANTED TO DO WAS MAKE AN EXAMPLE OUT OF ME. INSTEAD OF LETING ME BE WITH MY DIEING AUNT, I WAS PICKING UP PAPER, CUTTING GRASS, AND STANDING INSPECTIONS. MY QUESTION BECAME “WHY AM I STILL HERE IF THEY ARE KICKING ME OUT”. THIS WAS REALLY STARTING TO BREAK ME DOWN, BUT I STAYED STRONG AND CONTIUED TO DO AS I WAS TOLD. WHEN MY 45 DAYS WAS UP IN RESTRICTRION, I WAS SENT BACK TO MY VFA-125 SQUADRON. ONCE BACK AT VFA-125, I WAS INSTRUCTED TO START PAINTING THE HANGER WALLS WHERE THE F/A 18 AIRPLANES WERE KEPT. ONCE AGAIN, I AM WONDERING,”WHY AM I STILL HERE IF THEY ARE KICKING ME OUT.” I PAINTED THE HANGER FOR ABOUT 11 DAYS. WHEN I WAS FINIALLY DISCHARGED, I DID NOT THINK ABOUT ALL THE THINGS THAT I HAD JUST GONE THROUGH THE LAST 60 PLUS DAYS; JUST GETTING HOME TO BE WITH MY AUNT. MY AUNT LIVED FOR 17 MOTHES, AFTER I FETURNED HOME. I WOULD NOT TRADE MY NAVY FRIENDS AND FAMILY FOR ANYTHING, MAYBE JUST THE OLD SALTS WHO HAVE NO HEART OR COMPASTION FOR THEIR FELLOW SHIPMATE.

THANK YOU FOR YOUR TIME,”

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	940110 - 940202	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  940203		Date of Discharge:  970519

Length of Service (years, months, days):

	Active:    03  03  17 (Does not exclude lost time)
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  68

Highest Rate:  AMHAN

Final Enlisted Performance Evaluation Averages (number of marks):

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

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, MUC

Days of Unauthorized Absence:  30

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630605.

Chronological Listing of Significant Service Events:

940204:	Retention Warning:  Advised of deficiency (Fraudulent entry as evidenced by failure to disclose pre-service civil/drug involvement), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

961002:	Retention Warning:  Advised of deficiency (Not owning up to financial responsibilities), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

970211:	To UA.

970313:	Surrendered onboard VFA-125 at 1255.

970402:	NJP for violation of UCMJ, Article 85: desertion; violation of UCMJ, Article 86: UA, violation of UCMJ, Article 92: disobey a lawful order.
	Award:  Forfeiture of ½ months pay for 2 months, restriction for 60 days, reduction to AMHAA.  No indication of appeal in the record.

No discharge package

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970519 under other than honorable conditions for misconduct due to commission of a serious offense (A).  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 (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

Issue 1.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) on one occasion for an extended period of unauthorized absence and disobedience of a lawful order.  While he may feel that his relatives’ health were factors that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question.  No such inequity or impropriety is evident during the Applicant’s enlistment.  Additionally, 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.  Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his 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), Change 14, effective 
03 Oct 96 until 971212, Article 3630605, SEPARATION OF ENLISTED PERSONNEL 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 9.3, EQUITY OF THE DISCHARGE.

D.  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.  

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