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NAVY | DRB | 2004_Navy | ND04-00442
Original file (ND04-00442.rtf) Auto-classification: Denied


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

ex-AMAN, USN
Docket No. ND04-00442

Applicant’s Request
The application for discharge review was received on 20040123. 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 20040922. 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 am requesting an upgrade because I don't feel that my offense warranted a Discharge. People whom committed more serious offenses were allowed to stay in the military yet myself with a lesser offense was not allowed to remain in service. I would like to receive a discharge upgrade and or a RE-Entry code, where there would be the possibility of a waiver. Which would be in up to the Secretary of the Service to make the ultimate decision as to whether I should be able to serve again.

While awaiting my separation, I saw people that were Allowed to stay in the service, some of whom were in an Unauthorized Absence or Deserter Status for 1, 2 and even 3 years. I know that unauthorized absence is wrong in all situations, but should someone who was UA for 3 months like myself be discharged and not allowed to return to service and someone who was UA for 3 years is allowed to return to service, I believe its unjust. There should be a set procedure for handling UA cases, but there isn't.

When I attended my Summary Courts-Martial, I was awarded 30 days restriction, reduction to pay grade E-3. When I asked for a clemency in my sentence, it was denied. According to the presiding officer, he gave me a lesser sentence, so that I could return to the fleet and have a chance of making a turn for the better. I believe that the officer, wanted to give me the chance to return to service. As no where in his court martial findings, he did recommend that I should be discharged from the service.

All of this information is contained in my Service Record.”
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):
         Inactive: USNR(DEP)               000223 – 001205  ELS
 USNR(DEP)                010123 - 010124  COG
          Active: None

 Period of Service Under Review :
Date of Enlistment: 010125               Date of Discharge: 030122

 Length of Service (years, months, days):

         Active: 01 11 28         Does not exclude lost time
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 57

 Highest Rate: AM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (1)    Behavior: 3.00 (1)                OTA: 3.00

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 118*

Total days of UA obtained from NAVPERS 1070/606 form.

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605). [Note BUPERSINST 1900.8 list the authority as 3630600 instead of 3630605]

 Chronological Listing of Significant Service Events :

020525:  Applicant to unauthorized absence 1000, 020525.

 020914:  Applicant apprehended by civilian authorities on 1332, 020914 for possession of a stolen car.

020923:  Applicant returned to military control at 1605, 020923.

021218:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence from 1000, 020525 to on or about 021001 (126 days/apprehended).
          Finding: to Charge I and the specification thereunder, guilty.
          Sentence: Forfeiture of $869.00, restriction for 30 days, reduced to E-3.
         CA action 021219: Sentence approved and ordered executed.

021224:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidence by absent without leave (30 days or more).
021224:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
020109:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to absent without leave (30 days or more). Commanding Officer’s comments [(Applicant’s) lengthy period of unauthorized absence precludes his further retention in the Naval Service. I recommend his separation from the Naval Service with an Other Than Honorable Discharge by reason of misconduct due to commission of a serious offense.

030114:  Commander, Navy Region Southwest directed the Applicant's discharge under other than honorable conditions by reason of misconduct.

030203:  CNPC message to PERSUPP DET NAVSTA San Diego, CA to issue a DD Form 215 to reflect correct SPD code of HKD.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030122 under other than honorable conditions for misconduct due to absent without leave - 30 days or more (A & 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).

Issue 1. 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 court martial proceedings for a violation of Article 86 for an unauthorized absence in excess of 100 days. 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 Applicant contends, “according to the presiding officer, he gave me a lesser sentence, so that I could return to the fleet and have a chance of making a turn for the better.” The Applicant’s Commanding Officer recommended the Applicant for administrative separation stating, “I recommend his separation from the Naval Service with an Other Than Honorable Discharge by reason of misconduct due to commission of a serious offense.” While he may feel that he should have had a second chance, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other of the Armed Forces. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps. Reenlistment policy of the naval service is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054. 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.

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 documentation to support any claims of post-service accomplishments or any other evidence related 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), re-issued October 2002, effective 22 Aug 02 until Present, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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 “ 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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