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

FOR OFFICIAL USE ONLY

ex-FTSN, USN
Docket No. ND06-00406

Applicant’s Request

The application for discharge review was received on 20060123.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general under honorable conditions.  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 20061116.  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: 

“I would like to upgrade my discharge to honorable conditions because I would like to further my education and would like to be able to use my GI Bill.  During the time I took unauthorized leave of absence my wife was in the hospital with my daughter.  She was born with alot of complications.”

Documentation

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

Applicant’s DD Form 214 (Service 2)
Course Transcript from High-Tech Inst-Phx, dated October 27, 2005
Oncology Admit Note from Phoenix Children’s Hospital, dated September 24, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20001114 - 20010705	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010706		Date of Discharge:  20031016

Length of Service (years, months, days):

	Active:    02  03  11  (Does not exclude lost time)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  128 days
	Confinement:		  None

Age at Entry:  18

Years Contracted:  4 (12-month extension)

Education Level:  12				AFQT:  62

Highest Rate:  FTSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.0 (1) 		Behavior:  2.0 (1) 			OTA:  2.83

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 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events: 

020327:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
Award:  Forfeiture of $500.00 pay per month for 1 month, extra duties for 45 days, restriction to SUBSCHOOL for 45 days.  No indication of appeal in the record.

020327:	Retention Warning:  Advised of deficiency (Violation of UCMJ Article 86 (Absence from unit, organization or place of duty)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030307:	Applicant to unauthorized absence at 0745 on 030307.

030612:	Applicant returned from desertion status at 1330, 030612.

030613:	NJP for violation of UCMJ, Article 86 (absence without leave): In that FTSN M_ C_, on active duty, did on or about 0730, 030309, without authority, fail to go at the prescribed time to his appointed place of duty, to wit: USS MINNEAPOLIS-SAINT PAUL (SSN 708) located at Newport News, VA.
Violation of UCMJ, Article 85 (desertion): In that FTSN M_ C_, on active duty, did on or about 0730, 030309, with intent to remain away permanently, absent himself from his appointed place of duty, to wit: USS MINNEAPOLIS-SAINT PAUL (SSN 708) located at Newport News, VA and did remain so absent in desertion until on or about 1330, 030612.
	Award:  Oral reprimand, forfeiture of $640.00 pay per month for 2 months, restriction to ship for 45 days (suspended for 3 months), extra duty for 45 days (suspended for 3 months), reduction to next inferior pay grade.  No indication of appeal in the record.
 
030913:	Applicant to unauthorized absence at 0730 on 030913.

030925:	Applicant from unauthorized absence at 0730 on 030925.

030925:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct commission of a serious offense.

030925:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

030926:	Applicant to unauthorized absence at 0730 on 030926.

030926:	Commanding Officer, Submarine Squadron Support Unit, Norfolk, recommended to Commander, Submarine Group Two, that Applicant be discharged under other than honorable conditions by reason of misconduct due to commission of a serious offense.  Commanding Officer’s comments:  “It is evident that FTSA C_ (Applicant) will continue to be a detriment to good order and discipline and has no further potential for future service in the United States Navy.  Per reference (a) he is being processed for administrative separation.  I recommend he be separated with an Under Other Than Honorable discharge.”

031002:	GCMCA, Commander, Submarine Group Two, authorized the Applicant's discharge under other than honorable conditions by reason of misconduct commission of a serious offense.

031016:	DD 214:  Applicant discharged in absentia under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged in absentia on 20031016 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 records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  

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 retention warning and two nonjudicial punishment proceedings for violations of Articles 85 and 86 of the UCMJ.  The Applicant’s last period of unauthorized absence, which was ended by the Applicant’s discharge in absentia, was never adjudicated.  The evidence of record also shows the Applicant had one period of unauthorized absence of 96 days.  Violations of Article 85 of the UCMJ are considered serious offenses.  Violations of Article 86, for unauthorized absences of more than 30 days, are also serious offenses.  Punitive discharges are authorized for serious offenses if adjudged as part of the sentence upon conviction 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 implies that his discharge is inequitable because, at the time of his unauthorized absence, his wife is in the hospital with his daughter.  While he may feel that his family responsibilities were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  Neither the evidence of record nor the documents submitted by the Applicant demonstrate that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The Applicant contends that his discharge should be changed so that he may use the GI Bill.  The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, 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.  Relief on this basis would be inappropriate.

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 02 until Present, Article 1910-142 [formerly 3630605], SEPARATION 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 85, desertion or Article 86, absence without leave for a period of more than 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