Author: CAP
Last saved by: janet.goode
Company: NCPB

Docket No. ND06-00589

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

FOR OFFICIAL USE ONLY

ex-AOAA, USN
Docket No. ND06-00589

Applicant’s Request

The application for discharge review was received on 20060328.  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 20070110.  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.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and the attached document:

“I respectfully request that my discharge be upgraded for the following reasons.
I have been a loyal and honorable sailor for 7 years if my life.  I had a problem at the time that that I tried to solve.  I was stationed at VF-101 Nas Oceana Virginia Beach VA.  While I was out there I took leave to go to Washington to see my wife and my new born baby girl  While I was stationed at VF 101 my wife lived with her mother in Washington.  When I got out there my mother-in-law was upset that my wife had ask me to come to Washington to see my newborn she told my wife that she could not stay there anymore which; leaving my wife her two sons and my daughter with no place to live.  I rented hotels until I could find an apartment or some place for them to stay until I was able to take better care of them.  I called VF 101 to ask for an extention of my leave because, when it was time for me to return to my command I still did not have a place for them to live.  VF 101 denied my extention.  I went to the base chaplin in at Puget Sound Navel Shipyard Bremerton; WA to ask him for help:  He called my command and they told him no also.  At the time I felt that I had not other option but to stay and take care of my family.  I realize now the decision that I made was not the best decision that I could make but, it was a decision that I made on my own.  When I was apprehended I went to the brig and was a detainee awaiting court martial.  By the time I went to court martial I had been detained in the brig for 58 days.  When I went to court martial my defence attourney presented my case and the prosecuter presented his case.  I pled guilty to unauthorize absence (UA).  The judge saw enough evidence to determin that I had a hardship but, he also saw I was in fact UA.  I was awarded 75 days confinement with 15 days suspended.  Because I had aquired good time while I was confined in the brig and I had served 58 days I was released the same day I went to court martial.  I was taken to TPU Puget Sound, Silverdale WA after court martial.  The next business day the legal petty officer had told me that they was trying to figure out what to do with me because VF 101 had dropped me from their command and the judge at court martial did not discharge me.  About 3 days later the legal petty officer called me in and told me that was being discharge as per the commanding officer TPU Puget Sound for conduct of a serious offence.

I ask the legal petty officer to explain why and she said that the commanding officer did not want me to be in the navy any more, and because I had already been charged with UA I could not be charge with the same crime again.  She said that any crime that can a person go to court martial they can be charged with conduct of a serious offence as an add on charge.  Conduct of a serious offence was not added on at court martial it was a seperate charge that was given to me when I got to TPU to have a reason to discharge me on.  It has been 19 months sence I had been discharge.  With in these 19 months I have been working and going to college to get a degree.  I am truly trying to better myself and I respectfully request you grant my a discharge up grade.”

Documentation

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

Applicant’s DD Form 214 (Service 2)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19960228 - 19960311	COG
	Active:   USN	19960312 - 20001111	HON

Period of Service Under Review:

Date of Enlistment:  20001112		Date of Discharge:  20040330

Length of Service (years, months, days):

	Active:    03  04  19  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  111 days
	Confinement:		    56 days

Age at Entry:  23

Years Contracted:  4

Education Level:  12				AFQT:  41

Highest Rate:  AO3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.7 (3)	Behavior:  2.7 (3)	OTA:  3.24

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Armed Forces Expeditionary Medal(2), Navy “E” Ribbon(2), Meritorious Unit Commendation Medal(2), Sea Service Deployment Ribbon, Navy Unit Commendation, First Good Conduct Award for period ending 99Mar12.

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).  
Chronological Listing of Significant Service Events: 

001112:	Reenlisted this date for a term of 4 years.

010211:	Applicant to unauthorized absence at 0650 on 010211.

010220:	Applicant from unauthorized absence at 0650 on 010220 (9 days/surrendered).

010509:	NJP for violation of UCMJ, Article 86: Unauthorized absence (010211 thru 010219 inclusive - 9 days lost time.)
	Award:  Forfeiture of $500.00 per month for 2 months, reduction to E-3.  Reduction suspended for 6 months.  No indication of appeal in the record.

010509:	Retention Warning:  Advised of deficiency (Violation of Article 86 (Unauthorized absence).  CO’s mast was held on 010509.  Awarded: Forfieture $500.00 for 2 months and RIR to E-3 suspended 6 months.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020328:	Retention Warning:  Advised of deficiency (UA and fail to obey or regulation.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020716:	Retention Warning:  Advised of deficiency (The Disciplinary Review Board held on 020711, for violation of the Uniform Code of Military Justice, Article 92, failure to obey a lawful regulation (GTCC).), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020826:	NJP for violation of UCMJ, Article 81: (Conspiracy).
Violation of UCMJ, Article 92 (2 specs): (Failure to obey order or regulation).
Violation of UCMJ, Article 86 (2 specs): (Unauthorized absence).  No lost time.
Violation of UCMJ, Article 107: (False official statement).
	Award:  Forfeiture of $734.00 per month for 2 months, restriction for 45 days, reduction to E-3.  Forfeiture and reduction suspended for 6 months.  No indication of appeal in the record.

020826:	Retention Warning:  Advised of deficiency (Captain’s Mast was held on 020826, for violation of the Uniform Code of Military Justice, Article 81, Conspiracy, Article 86, Absence from appointed place of duty (2 specs), Article 92, Failure to obey order or regulation (2 specs), Article 107, False official statement.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030224:	Forfeiture of pay and reduction in pay grade awarded at NJP on 020826 vacated due to continued misconduct.

030516:	NJP for violation of UCMJ, Article 107: False official statement (030213).
	Award:  Forfeiture of $645.00 per month for 2 months, restriction for 60 days, reduction to E-2.  Forfeiture suspended for 6 months.  Appealed and appealed denied 030616 [Extracted from NAVPERS 1070/613, dated 030627].

030627:	NAVPERS 1070/613:  Administrative Remarks.  Court memorandum, NAVPERS 1070/607 of 030519 is hereby corrected to reflect the dismissal of Charge II, and its specification pursuant to COMNAVAIRLANT Ltr 6812 SER NO1L/180 of 030616. In processing the remainder of the member’s appeal it was found that the Commanding Officer’s finding on Charge I and its specification was not an abuse of discretion and that the punishment awarded was neither unjust nor disproportionate in light of the remaining charge.  Accordingly the appeal was denied.

030905:	Applicant to unauthorized absence at 0730 on 030905.

031026:	Applicant declared a deserter.

031027:	Applicant apprehended by Kitsap County Sheriff, Bremerton, WA as of 0005, 031027.

031216:	Applicant from unauthorized absence at 1200 on 031216 (102 days/apprehended) and returned to military control.  Applicant transferred to TPU Puget Sound, NAVSTA Bangor, WA at 1440, 031216.

031216:	Applicant to pretrial confinement at Naval Brig

040204:	Applicant’s pretrial agreement.  All confinement in excess of 60 days will be suspended for a period of one year from the date of the convening authority’s action.  Applicant agrees to waive his right to a hearing before an administrative separation board, if he is processed for an administrative discharge which includes as a basis for processing the offenses to which he has entered pleas of guilty in this case.

040209:	Pretrial agreement approved.

040210:	Applicant from pretrial confinement (56 days).

040210:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 86:
	Specification:  Did, on or about 030905, without authority, absent himself from his unit, to wit: VF-101, located at Virginia Beach, Virginia, and did remain so absent until he was apprehended on or about 031216.  Plea:  Guilty.  Findings:  Guilty.
	Sentence:  Confinement for 75 days.
	
040217:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable by reason of misconduct - commission of a serious offense.

040217:	Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

040219:	Commanding Officer, Transient Personnel Unit Puget Sound, to the Secretary of the Navy, recommended discharge under other than honorable conditions by reason of commission of a serious offense.  Commanding Officer’s comments:  “AOAA D_(Applicant) was found guilty at Special Court Martial held on 040210 for violation of the UCMJ, Article 86, unauthorized absence.  He shows no potential for further naval service.  I recommend discharging him with an Other Than Honorable discharge.”

040324:	CNPC, directed the Applicant's discharge under other than honorable conditions by reason of misconduct with a separation code of HKD (absent without leave -30 days or more.)

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040330 by reason of misconduct (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).  

The Applicant contends that his problems in the Navy were the result of his decision to take care of his family instead of returning to duty.  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 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 4 retention warnings and 3 nonjudicial punishment proceedings for violations of Articles 81 (Conspiracy), 86 (Unauthorized absence, 3 specs), 92 (Failure to obey order/regulation, 2 specs), and 107 (False official statement, 2 specs) of the UCMJ.  The Applicant also had a suspended punishment vacated due to continued misconduct.  Further, the Applicant plead guilty at a special court martial to violating UCMJ Article 86 (UA, for more than 30 days) for a 102 day period of unauthorized absence.  Violation of UCMJ Article 86 (UA, for more than 30 days) is considered a serious offense, for which a punitive discharge is authorized if adjudged by 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.

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 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 post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.  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), re-issued October 2002, effective 22 Aug 02 until 25 April 05 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 86 (Unauthorized absence, 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