Author: CAP
Last saved by: joseph.curtis
Company: NCPB

Docket No. ND06-00931

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

FOR OFFICIAL USE ONLY

ex-MSSR, USN
Docket No. ND06-00931

Applicant’s Request

The application for discharge review was received on 20060706.  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 personal appearance hearing discharge review before the Board in the Washington, D.C. Metropolitan area.  The Applicant did not designate a representative on the DD Form 293.  

Decision

The Applicant did not appear for his scheduled personal appearance hearing on 20070207.  In accordance with SECNAVINST 5420.174D, failure to appear at a personal appearance hearing shall constitute a waiver of the right to a personal appearance hearing and, if the Applicant has not had a documentary discharge review, the NDRB shall complete its review of the discharge.  Therefore, a documentary discharge review was conducted in Washington, D.C. on 20070208.  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.

The NDRB did note administrative error(s) on the original DD Form 214.  Block 12c, Net Active Service This Period, should read: “01 06 06”, and Block 24, Character of Service, should read: “UNDER OTHER THAN HONORABLE CONDITIONS”, and Block 28, Narrative Reason for Separation, should read: “MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.  ”  The Commander, Navy Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.
PART I - ISSUES AND DOCUMENTATION

Decisional Issues

The Applicant did not submit any decisional issues for the Board to consider.

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)	19900809 - 19900827	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19900828		Date of Discharge:  19920305

Length of Service (years, months, days):

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

Time Lost During This Period (days):

	Unauthorized absence:  64 days
	Confinement:		  None

Age at Entry:  21

Years Contracted:  4 (24-month extension)

Education Level:  12				AFQT:  43

Highest Rate:  MSSR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.6 (1) 		Behavior:  2.6 (1)			OTA:  2.80 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Southwest Asia with Bronze Star, Sea Service Deployment Ribbon, Battle “E” Ribbon

Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - commission of a serious offense, authority:  MILPERSMAN, Article 3630600.
Chronological Listing of Significant Service Events: 

900904:	Retention Warning:  Advised of deficiency (Defective enlistment and induction due to fraudulent entry into naval service as evidenced by failure to disclose pre-service involvement with civil authorities), advised of consequences of further deficiencies and issued discharge warning.

910401:	Applicant to unauthorized absence at 0700 on 910401.

910501:	Applicant declared deserter.

910517:	Applicant from unauthorized absence at 1030 on 910517 (46 days/surrendered).

910605:	NJP for violation of UCMJ, Article 86: Unauthorized absence from Transient Personnel Unit, at 0700, 910401 until on or about 1030, 910517.
Award:  Restriction for 45 days, forfeiture of ½ pay per month for 2 months (suspended for 6 months) and extra duty for 45 days.  No indication of appeal in the record.

910906:	NJP for violation of UCMJ, Article 86: On or about 2030, 910831, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: EDF Galley, and did remain therefrom until on or about 1430, 910901.
Award:  Oral admonition, restriction to USS L.Y. SPEARS (AS 36) for 15 days.  No indication of appeal in the record.

920123:	Applicant to unauthorized absence at 0445 on 920123.

920127:	Applicant from unauthorized absence at 0700 on 920127 (4 days/surrendered).

920130:	Applicant to unauthorized absence at 1230 on 920130.

920213:	Applicant from unauthorized absence at 2219 on 920213 (14 days/surrendered).

920214:	NJP for violation of UCMJ, Article 86 (2 specs): Unauthorized absence from USS L.Y. SPEARS (AS 36) on or about 920123 and remained so absent until on or about 920127 and UA from 920130 and remained so absent until on or about 920213.
Award:  Oral reprimand, restriction and extra duty for 45 days.  No indication of appeal in the record.

920219:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of pattern of misconduct as evidenced by Commanding Officer’s Nonjudicial Punishments of 910605, 910906, 920214, and Administrative Remarks NAVPERS 1070/613 dated 900904.

920219:	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.

920220:	Commanding Officer, USS L.Y. SPEARS (AS 36), recommended discharge under other than honorable conditions by reason of pattern of misconduct as evidenced by Commanding Officer’s Nonjudicial Punishments of 910605, 910906, 920214, also by Page 13 Warning dated 900904.  Commanding Officer’s comments:  “Based on SR G_’s (Applicant’s) demonstrated lack of ability to conform to Navy Regulations, I recommend that SR G_ be separated from the Naval Service.  Based on three Captain’s Mast all for unauthorized absences.  I recommend his discharge be characterized as other than honorable.”

920226:	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 Commanding Officer’s Nonjudicial Punishment of 910605.

920226:	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.

920302:	Commanding Officer, USS L.Y. SPEARS (AS 36), recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by Commanding Officer’s Nonjudicial Punishment of 910605.  Commanding Officer’s comments:  “Based on SR G_’s (Applicant’s) demonstrated lack of ability to conform to Navy Regulations, I recommend that SR G_ be separated from the Naval Service.  Based on his Captain’s Mast in June of 1991, which was for a lengthy unauthorized absence which constitutes a serious offense and his 2 subsequent Captain’s Mast also for unauthorized absence.  I recommend his discharge be characterized as other than honorable.”

920305:	BUPERS directed the Applicant's discharge under other than honorable conditions discharge by reason of misconduct serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920305 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).  

For the Applicant’s edification, 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.   Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted.  There is no evidence of impropriety or inequity in the Applicant’s discharge.  The Applicant’s misconduct is clearly documented.  Therefore, 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 retention warning and 3 nonjudicial punishment proceedings for violations of Article 86 (unauthorized absence, 4 specifications) of the UCMJ.  The Applicant’s misconduct includes periods of unauthorized absence of 46 days, 4 days, and 14 days.  Violation of UCMJ Article 86 (unauthorized absence for a period more than 30 days) is considered a serious offense, for which a punitive discharge is authorized if adjudged by 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 following is provided for the edification of the Applicant.  The NDRB has no authority to provide additional review of this case since Applicant’s discharge occurred more than 15 years ago.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of Naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 
04 Mar 93, Article 3630600, 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 for a period greater 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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