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NAVY | DRB | 2001_Navy | ND01-00404
Original file (ND01-00404.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND01-00404

Applicant’s Request
The application for discharge review, received 010212, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a documentary record discharge review. The applicant listed New Jersey Dept of Military &Veteran Affairs as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010629. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. 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 - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. There is no prolonged absence which is unauthorized for a continuous period of one year or more. Such short period of absences is not tantamount to there was only 48 days total the lost. Due to a short duration of lost time am upgrade should be granted. Acknowledgement should be given to the following military cases on prolonged absences. AD 80-07961A(upgrade granted 178 days lost. AD 80-00475 upgrade granted 288 days lost. AD 78-03974 upgrade granted 160 days lost. AC 58-07715-B Two Absences, 16 and 48 days the board stated not withstanding the seriousness of the absence without leave at the time. Consideration should now be given contemporary policies relative absences of short duration. AD 80-10836 UD to AD 33 days AWOL. Consideration should also be given to the applicants time prior to minor offense in military service. Medals, Ribbons and Citations received point to applicants prior conduct as good character of discharge too severe. General Discharge warranted under these conditions.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     840926 - 850203  COG

 Period of Service Under Review :
Date of Enlistment: 850204               Date of Discharge: 870304

 Length of Service (years, months, days):

         Active: 01 11 18
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 13 1/2                    AFQT: 26

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.90 (2)    Behavior: 3.20 (2)                OTA: 3.10

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, NUC(2), NEM, AFEM

Days of Unauthorized Absence: 49

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

850410:  Retention Warning from [RTC, OLANDO, FL]: Advised of deficiency (You have demonstrated unsatisfactory performance and/or conduct by your incapability to pass the THIRD RECRUIT ACADEMIC TEST with scores of 216/208), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

861007:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 861007 having been an unauthorized absentee since 0730, 860908 from VAW 127.

861112:  Summary Court Martial for violation of UCMJ, Article 86: (2 Specifications), Spec 1: UA from 860908-860917[9days/S], Spec 2: UA from 860917-861027[40days/S].
         Sentence: Restriction for 45 days, reduction to E-2.
         CA (861112) Approved findings and sentence.

861212:  NJP for violation of UCMJ, Article 86: Unauthorized Absence.
         Award: Restriction to NAS Norfolk, VA for 5 days, extra duty for 5 days. No indication of appeal in the record.

861224:  Retention Warning from [CARAEWRON ONE TWO SEVEN]: Advised of deficiency (Violation of UCMJ, Article 86 (2 Specifications) Unauthorized absence from 860905-860917 and 860917-861027), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

870206:  NJP for violation of UCMJ, Article 86: Failure to be at appointed place of duty, violation of UCMJ Article 107: (2 Specifications), Intent to deceive by making an official statement.
Award: Restriction to NAS Norfolk, VA for 30 days, reduction to E-1. No indication of appeal in the record.
870206:  [CARAEWRON ONE TWO SEVEN] notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.

870210:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
870212:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.

870302:  CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 870309 under other than honorable conditions for misconduct due to a pattern of misconduct (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

 In the applicant’s issue 1, the applicant suggests that he should receive a general discharge for the short amount of time that he was in an unauthorized absence status and the fact that other individuals’ characterizations were upgraded that had longer durations of prolonged absence. The applicant’s length of service was one year and 11 months. The Board found that the applicant was brought to a Summary Court Martial for his 2 periods of UA for 9 days and 40 days respectively. The applicant was then brought to CO’s NJP for an additional UA period. He received a retention warning advising him that further misconduct may result in his separation from the Navy. The applicant failed to heed this warning and was awarded CO’s NJP 3 months later for unauthorized absence and 2 specifications of false official statement. The Board feels the applicant’s service is accurately characterized as having been served under other than honorable conditions. No relief will be granted based on this issue.

There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service. However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D). Those factors include, but are not limited to, the following: evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided any documentation of good character and conduct. Therefore no relief will be granted. The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560, Change 7/86, effective 15 Dec 86 until 14 Jun 87), Article 3630600, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT A PATTERN OF MISCONDUCT.

B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 86, for unauthorized absence for a period in excess of 30 days if adjudged at a Special or General Court-Martial.
C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 “ afls10.jag.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:

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


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