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Docket No. ND04-00959

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

ex-ENFA, USN
Docket No. ND04-00959

Applicant’s Request

The application for discharge review was received on 20040526.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region.  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) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041112.  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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).  Discharged in absentia.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “My Discharge is inadequate due to the fact that I was not given a chance to speak any type of defense or reasoning at NJP.  At Summary Court Martial, My Sentence was Executed Before I had time to speak.  My discharge was administrative while I was detained in the brig, after being informed that I would not be discharged.”

Documentation

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

E-mail from Applicant, dated November 3, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	001108 - 010826	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  010827		Date of Discharge:  030314

Length of Service (years, months, days):

	Active:    01  06  18 (Does not exclude lost time)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  11			AFQT:  94

Highest Rate:  ENFA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*			Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  105

*No marks found in service record

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events:

020108:	Applicant to unauthorized absence 0600, 020108.

020127:	Applicant from unauthorized absence 2015, 020127 (19 days/surrendered).  
020206:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
	Award: Forfeiture of $250 per month for 1 month, restriction and extra duty for 14 days.  No indication of appeal in the record.

020206:	Retention Warning: Advised of deficiency (Poor military performance, to wit: unauthorized absence.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020916:	Applicant to unauthorized absence 0545, 020916.

020922:	Applicant missed ship’s movement.

021016:	Applicant declared a deserter.

021203:	Applicant missed ship’s movement.

021210:	Applicant from unauthorized absence 0600, 021210 (84 days/apprehended).  

021219:	Summary Court-Martial.  No further information found in service record.  [Extracted from NAVPERS 1070/604, Awards]

030116:	Applicant to unauthorized absence 0600, 030116.

030118:	Applicant from unauthorized absence 0700, 030118 (2 days).

030225:	Commander, Carrier Group SIX directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

Parts of Applicant’s discharge package missing from service record

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged, in absentia, on 20030314 under other than honorable conditions for misconduct due to a pattern of misconduct (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) for violation of Article 86 of the UCMJ on one occasion, and a summary court-martial on another occasion.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable or under honorable (general) characterization of service.  Relief denied.

There was nothing in the available records, nor did the Applicant provide any documentation, to refute the presumption that all of his rights and privileges were afforded to him at his nonjudicial punishment and summary court-martial proceedings, specifically including the right to speak on his own behalf.  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.  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), re-issued October 2002, effective 22 Aug 2002 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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

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.