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

FOR OFFICIAL USE ONLY

 ex-MSSA, USNR
Docket No. ND06-00092

Applicant’s Request

The application for discharge review was received on 20051020.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060726.  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 by reason of misconduct due to commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application: 

“A upgrade or change is being requested because since my discharge I have not got in any trouble.  Also I cannot get good employment, meaning Government of Federal jobs and I have a 4 year college degree that I completed at Delaware State University.  I have learned From my mistakes and I am trying to move on in life but I cannot really support myself or family with the low paying jobs I have to work.”

Applicant’s Remarks:  (Taken from the DD Form 293)

“I have been paying For this mistake I made for 8 long years.  I have learned From this mistake and I would like an opportunity to move on in my life.  I hope you can understand and help me.  Every good job I Apply For I cannot receive because of this discharge.  IF you could please Find it in the kindness of your heart to change this, it would really help me continue my life on a positive Path, thank you.”

Documentation

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

Letter from Department of Public Safety and Correctional Services CJIS Central Repository, dtd November 1, 2004
Applicant’s DD Form 214
Transcript from Delaware State University, issue date September 02, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive:  None 
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19950908		Date of Discharge:  19961011

Length of Service (years, months, days):

	Active:    01  01  03  (Does not exclude lost time.)
	Inactive:  00  00  04

Time Lost During This Period (days):

	Unauthorized absence:  63 days
	Confinement:		  none

Age at Entry:  18 

Years contracted:  8 (3 years active duty and 12 month extension)

Education Level:  12				AFQT:  32

Highest Rate:  MSSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.0 (1) 		Behavior:  1.0 (1) 		OTA:  1.17

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal.

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

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

Chronological Listing of Significant Service Events: 

950912:	Commenced active duty for a period of 48 months. 

960426:	Applicant to unauthorized absence at 0630 on 960426.

960521:	Applicant from unauthorized absence at 0930 on 960521 (25 days/surrendered).

960603:	Applicant to unauthorized absence from USS ENTERPRISE (CVN 65) at NOB Norfolk, VA 0630 on 960603.

960628:	Applicant missed ship’s movement.

960703:	Applicant declared a deserter.

960711:	Applicant surrendered on board TPU Norfolk, VA at 1810 on 960711 (38days/surrendered).

960720:	Applicant transferred to TPU Norfolk, VA in a MED-HOLD status.

960822:	NJP for violation of UCMJ, Article 86: Did, on active duty, on or about, 0630, 03 June 1996, without authority, absent himself from his unit, to wit: USS ENTERPRISE, located at Naval Base, Norfolk, Virginia, and did remain so absent until he surrendered on or about 1810, 11 July 1996.
	Award:  Forfeiture of $490.35 per month for 1 month, restriction to TPU for 45 days, extra duty for 45 days, and RIR to next inferior pay grade.  No indication of appeal in the record.

960822:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by service record entries.

960822:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

960828:	Commanding Officer, Transient Personnel Unit recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by service record entries.  Commanding Officer’s comments:  “In view of the offenses evidenced in paragraph 1d it is recommended that MSSA L_ (Applicant) be separated with an other than honorable discharge.”

961003:	GCMCA, Commander, Naval Base, Norfolk 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 19961011 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of under other than honorable conditions.  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 (C and D).  

The Applicant requests an upgrade to his discharge characterization to honorable. 
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 record is marred by one nonjudicial punishment proceeding for a violation of UCMJ Article 86 (UA 63 days). A violation of Article 86 (unauthorized absence in excess of 30 days) is a serious offense and a punitive discharge is authorized at a special or general court-martial. 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.

The Applicant requests an upgrade so he may obtain government or federal jobs, use his college degree and better support his family. The Board advises the Applicant, that it has no authority to upgrade a discharge for the sole purpose of enhancing employment.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Relief denied.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 verifiable employment records, character reference letters and documentation of community service.  As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider. 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 documentation to support any claims of post-service accomplishments or any additional evidence related to this 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.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 86 (unauthorized absence in excess of 30 days).

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.

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