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NAVY | DRB | 2004_Navy | ND04-00097
Original file (ND04-00097.rtf) Auto-classification: Denied


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

ex-ITSA, USN
Docket No. ND04-00097

Applicant’s Request
The application for discharge review was received on 20031017. The Applicant requests the 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 list any as the representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040812. 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/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “I had injured my back, and awaiting discharge. My mother was in the hospital, I was concerned. I submitted leave papers several times, but was denied each time. I made the mistake of listening to my heart and not my head. I was young and didn’t realize this was wrong. I went AWOL. Upon return, I was demoted and given an OTH. Since then I’ve realized, I miss being in the Navy, serving my country. And I feel and so do others, that I am mature and ready to be a helping hand to the Navy and my country. I wish to serve once more. I was awaiting discharge due to back injury.”

Additional issues submitted by Applicant’s representative (AMERICAN LEGION):

 2. Equity Issue: “Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Evaluation Report and Counseling Record, dated July 15, 2000 (2)
Applicant’s DD Form 214 (Member 1) (2)
Letter of recommendation, dated January 22, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR(DEP)               990715 - 990719  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 990720                        Date of Discharge: 010810

 Length of Service (years, months, days):

         Active: 02 00 21
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 10                        AFQT: 65

 Highest Rate: ITSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (2)    Behavior: 2.00 (2)                OTA: 2.75

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 41

 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 :

010715:  NJP for violation of UCMJ, Article 86: Unauthorized absence 0630, 010515 to 1340, 010626 (41 days/surrendered), violation of UCMJ, Article 87 (2 specs): Missed ships movement on 010601 and 010622.
         Award: Forfeiture of $584 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.

010810:  Comments from Evaluation Report and Counseling Record: Numerous counseling for minor offenses including disrespect, personal financial responsibility, and tardiness. [Extracted from Evaluation Report and Counseling Record dated 010810.]

010810:  DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct, authority: NAVMILPERSMAN, Article 1910-142.

NO DISCHARGE PACKAGE AVAILABLE

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010810 under other than honorable conditions for misconduct due to absent without leave - 30 days or more (A). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this, the Board found that the discharge was proper and equitable (B and C). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

Issue 1. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy. 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.

Issue 2. The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an procedural error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident during the Applicant’s enlistment. Additionally, 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. The NDRB is authorized, however, 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. The Applicant has not provided sufficient documentation for the Board to consider. Relief not warranted.

A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor. The Applicant’s service was marred by award of nonjudicial punishment (NJP) on one occasion for violation of Articles 86 and 87 of the UCMJ. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. 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 additional documentation to support any claims of post-service accomplishments or any other evidence relating to his discharge 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 31, effective
25 Jan 01 until 21 Aug 02, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B. 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.

C. 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.
D. 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.

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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