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NAVY | DRB | 2004_Navy | ND04-00279
Original file (ND04-00279.rtf) Auto-classification: Denied


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


ex-AA, USN
Docket No. ND04-00279

Applicant’s Request
The application for discharge review was received on 20031203. 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 representative on the DD Form 293.

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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as stated
No issues were submitted by the Applicant.

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Application for VA Education Benefits (3 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     890906 - 890916  COG
          Active: USN                        None
Period of Service Under Review :
Date of Enlistment: 890917               Date of Discharge: 910924

 Length of Service (years, months, days):
         Active: 02 00 08
          Inactive: None
Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 29

 Highest Rate: AA
Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA*                 Behavior: NMA             OTA : NMA
Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, NAVY”E”, AFEM, SSDR

 Days of Unauthorized Absence: 167
*No Marks made available for review

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.
Chronological Listing of Significant Service Events :

900219:  Retention Warning: Advised of deficiency (Your performance and conduct have been unsatisfactory. You were awarded CO’s NJP on 900219 for Article 86), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
900219:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 900126 to 900131 (5days/S).
         Award: Forfeiture of $100.00 pay per month for 1 month, restriction and extra duty for 10 days. No indication of appeal in the record.
900914:  UA from USS CARL VINSON (CVN-70) located at NAS Alameda, CA at 0715, 900914.

 900915:  Applicant surrendered onboard USS CARL VINSON (CVN-70) located at NAS Alameda, CA at 1800, 900915 (1day/S).

901012:  UA from USS CARL VINSON (CVN-70) located at PSNS Bremerton, WA at 0715, 901012.

901015:  Applicant surrendered onboard USS CARL VINSON (CVN-70) located at PSNS Bremerton, WA at 0645, 901015 (3days/S).

901120:  Declared a deserter.

901121:  Applicant apprehended by civil authorities in Bremerton, WA at 2130, 901121.

901204:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86: (2 Specifications), Unauthorized absence.
         Specification 1: Unauthorized absence from unit from 0645, 900801 until 1230, 900831 (30days/S); Specification 2: Unauthorized absence from unit from 0715, 901021 until 2130, 901121 (30days)
         Finding: to Charge I and specifications 1 and 2 thereunder, guilty.
         Sentence: Confinement for 30 days.
         CA action 901204: Sentence approved and ordered executed. The Brig, Naval Station Puget Sound, Seattle, designated place of confinement.

910409:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of homosexuality as evidenced by your engaging in, or soliciting another to engage in a homosexual act or acts and misconduct due to the commission of a serious offense as evidenced by your Summary Court-Martial conviction on 901204 for your unauthorized absence from 900801 until 900831 and your unauthorized absence from 901021 until 901121.
910419:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
910424:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense, and engaged in a homosexual act or acts. By a vote of 2 to 1 the Board recommended Applicant be separated, recommended discharge under other than honorable conditions.

910502:  UA from USS CARL VINSON (CVN-70) located at PSNS Bremerton, WA at 0700, 910502.
910602:  Declared a deserter.
910607:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 910602 having been an unauthorized absentee since 0700, 910502 from USS CARL VINSON (CVN-70.
910807:  Applicant apprehended and returned (98 days).   

910809:  Report of Return of Deserter. Applicant apprehended by civil authorities on 910807 (1000) (PDST), 910807 at Mead Valley, CA. Returned to military control 910807 (1350) (EDST). Delivered to NAC Seattle on 910809 FFT to parent command.
910830:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and by reason of homosexuality.
910918:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19910924 under other than honorable conditions for misconduct due to commission of a serious offense (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 introduced no decisional issues for consideration by the Board.

 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 and a summary court-martial for violations of articles 86 and 125 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 or under honorable (general) 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), effective 15 Aug 91 until
04 Mar 93, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 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.

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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