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NAVY | DRB | 2002_Navy | ND02-00507
Original file (ND02-00507.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND02-00507

Applicant’s Request
The application for discharge review, received 020308, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a documentary record discharge review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021206. 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, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

Prior to the documentary discharge review, the Applicant did not introduce any issues in block 8 of the DD Form 293.

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

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     941005 - 941116  COG

 Period of Service Under Review :
Date of Enlistment: 941117               Date of Discharge: 960425

 Length of Service (years, months, days):

         Active: 01 05 09
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 46

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                  Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM, SSDR

 Days of Unauthorized Absence: 53

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.


 Chronological Listing of Significant Service Events :

960205:  Report of return of deserter. Applicant surrendered at 0058, 31 Jan 96. Applicant was in an unauthorized absence status since 1130, 8 Dec 95 (53 days/surrendered).
960223:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence from 1130, 8 Dec 95 to 0058, 31 Jan 96 (53 days/surrendered).
         Finding: to Charge I and the specification thereunder, guilty.
         Sentence: Forfeiture of $447.00 pay per month for 2 months, confinement for 30 days, reduced to AR.
         CA action not found in service record. [Extracted from Commanding Officer's letter dated 31Mar96.]

960318:  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 a Summary Court-Martial conviction on 23 Feb 96 for violation of UCMJ, Article 86 - unauthorized absence from 8 Dec 95 until surrendering on 31 Jan 96, a period of approximately 54 days.
960318:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation

960331:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to his period of absence without leave (30 days or more). Commanding Officer’s comments (verbatim): Recommend AR (Applicant) be discharged under Other Than Honorable Conditions. After absenting himself from his duty station for 54 days, he showed no remorse and indicated he would do it again. AR (Applicant) is unsuitable for service life.

960425:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 960425 under other than honorable conditions for misconduct due to a period of absence without leave (30 days or more) (A). The Board presumed regularity in the conduct of governmental affairs (B). 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 his period of unauthorized absence was the result of marital problems. The NDRB recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharges. In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The NDRB agrees that the Applicant's service was equitably characterized as being performed under other than honorable conditions.

The Board found the Applicant's age, education level, and test scores qualified him for enlistment. While he may feel his immaturity was a factor that contributed to his actions, the record clearly reflects his willful disregard for the requirement of military discipline and demonstrated he was unfit for further service. The record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief on this basis is denied.

The Applicant listed the goal of reenlisting as a basis for requesting an upgrade to his discharge. The NDRB has no authority to change reenlistment codes or make recommendations to permit reentry or reinstatement into the naval service or any other of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Relief is therefore denied.

The following is provided for the benefit of the Applicant. Normally, to permit relief, the discharge or characterization of the Applicant's service had to be improper or inequitable. 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 the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. Relief denied.

 The Applicant is reminded that the period of eligibility for a personal appearance hearing is 15 years from the date of discharge. The application package must be submitted to the NDRB prior to the expiration of the 15 year period. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. 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 9, effective
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT.

B. 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.

C. 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.

D. 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.
E. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article [e.g., 86, for unauthorized absence for a period in excess of 30 days] if adjudged at a Special or General Court-Martial.

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 “ afls14.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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