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

 ex-ETSN, USNR (TAR)
Docket No. ND05-00460

Applicant’s Request

The application for discharge review was received on 20050126.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests 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 20050511.  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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  "At the time I went UA I had requested leave because my son who was 3 yrs old at the time needed psychiatric treatment at the time to get help with his ADD.  My wife could not handle him alone at the time. I had let the proper chain of command know the situation. I told them that my child needed me at the time and that I was prepared to go UA if no help was given.  It wasn’t the best decision but at the time I thought it was the only thing I could do to help my son and my wife.  At captain’s mast I had been asked if I would like to stay in.  I told him that I would love to stay in the Navy if I could get transferred to get my son some help.  He said that at the time the only thing that he could do for me was giving me an other than honorable discharge and that if I had stayed out of jail for a minimum of six (6) months that I could change it to an honorable discharge.  My son has since that time received psychiatric help and is better.  This is my third (3rd) time submitting this info.  So please consider my case and allow it to be change to an Honorable Discharge.  Thank you, D_ C_ Jr.”

Documentation

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

None were submitted by the Applicant

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	900912 - 900925	COG
	Active:   USN			900926 - 920130	HON

Period of Service Under Review:

Date of Enlistment:  920131		Date of Discharge:  950815

Length of Service (years, months, days):

	Active:    04  10  20 (Does not exclude lost time)
	Inactive:  None

Age at Entry:  19			Years Contracted:  5

Education Level:  12			AFQT:  NFIR

Highest Rate:  ET3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.48 (5)		Behavior:  3.56 (5)		OTA:  3.52

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, BER

Days of Unauthorized Absence:  34

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

920131:	Reenlisted at Service School Command, Naval Training Center, GREAT
		LAKES, IL for 5 years.

950217:	Applicant UA from USS INCHON (MCS 12) at 0900; intentions
		unknown.  Applicant missed ship's movement at 1000.

950317:	Applicant declared a deserter.

950317:	Record of UA shows Applicant returned to military jurisdiction at USAEC
		and FLW.

950321:	Applicant UA from USS INCHON (MCS 12) (escapes custody of 
		USAEC and FLW); intentions unknown.

950327:	Applicant surrendered on board USS INCHON (LPH 12) at 1408.

950414:	Report of Return of Deserter.  Applicant surrendered to military authorities at 1408 on 950327 on board USS INCHON (LPH 12).  Retained on board for disciplinary action.
  
950407:	NJP for violation of UCMJ, Article 86 (2 Specs):  UA from 950217 to 950317 (28days/S) and UA from 950321 to 950327 (6days/S), violation of UCMJ Article 87: Missing ship’s movement through design on 950217.
	Award:  Restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

950602:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by one non-judicial punishment during his current enlistment.

950602:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to submit statements on own behalf either verbally or in writing and the right to obtain copies of the documents used to support the basis for the separation.

950718:	Commanding Officer, USS INCHON (MCS 12) recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by one non-judicial punishment for violation of UCMJ, Article 86 (2 Specs) -- UA from 950217 to 950317 and from 950321 to 950327 and violation of UCMJ, Article 87 -- Missing movement by design on 950217.  Commanding Officer's comments (verbatim): ETSN Cisneros's behavior is unacceptable and cannot be tolerated.  He blatantly disregarded Navy regulations without remorse.  His continued presence is detrimental to the good order and discipline of this command.  I strongly recommend his immediate separation from Naval service with and other than honorable discharge.

950803:	BUPERS Washington DC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950815 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, D, and E).

Issue 1:  The Applicant contends that his problems in the Navy can be attributed to the stress caused by being separated from his wife and three-year-old son, who required psychiatric treatment to help with his ADD.  While he may feel that his family situation was 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 is denied.

When the service of a member of the 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 a nonjudicial punishment (NJP) proceeding for violations of Articles 86 (x2) and 87 of the UCMJ.  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.

The Applicant implies that, since he has stayed out of jail for a minimum of six (6) months following his discharge, he could have the characterization of that discharge changed to honorable.  The Applicant must understand that 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 Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any documentation for the Board to consider.  Relief on this basis is 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 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 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

E.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 87 Missing movement through design if adjudged at a Special or General Court-Martial.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023