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NAVY | DRB | 2004_Navy | ND04-01084
Original file (ND04-01084.rtf) Auto-classification: Denied


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

ex-AKAA, USN
Docket No. ND04-01084

Applicant’s Request
The application for discharge review was received on 20040622. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. 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 20050214. 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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

 “1. Clemency is warranted because it is an injustice for me to continue suffer the adverse consequences of a bad discharge.
2. My average conduct and efficiency ratings/behavior and proficiency marks were good.
3. My record of promotions showed I was generally a good service member.
4. There were other acts of merit.
5. I have been a good citizen since discharge.
6. My ability to serve was impaired by my youth and immaturity.
7. my ability to serve was impaired by my deprived background.
8. I had tried to apply for a early out discharge but was unfairly told to forget it.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
VA Form 21-4138 dtd 040616
Character reference from T_ S_ dtd 040408
Character reference from F_ M. H_ dtd 040407 (2 pages)
77 pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     901113 - 901125  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 901126               Date of Discharge: 950830

 Length of Service (years, months, days):

         Active: 04 09 04                  [Does not exclude lost time]
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 31

 Highest Rate: AK3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.80 (2)             Behavior: 4.00 (2)                OTA: 3.90

 Military Decorations: None

 Unit/Campaign/Service Awards: AFEM, SSDR (2), SASM (2), NDSM

 Days of Unauthorized Absence: 272

 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 :

940314:  Applicant to UA.

940412:  Applicant from UA.

940503:  Applicant to UA.

940603:  Applicant declared deserter.

950201:  Applicant from UA., apprehended.

950320:  Special court-martial. Violation of UCMJ Article 86: Specification 1. UA from USS America 940314 to 940412. Specification 2. UA from USS America from 940503 to 950201.
         Sentence: Confinement for 90 das, RIR to E-2, forf $400 for 3 mos.
         CA: Approved and ordered executed 950418.
950530:  Applicant from confinement and restored to full duty.

 950530:  Applicant notified of intended recommendation for discharge by reason of misconduct due to commission of a serious offense as evidenced by service record book entries.
950530:  Applicant advised of 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

950601:  Commanding Officer recommended discharge under other than honorable conditions by reason of commission of a serious offense as evidenced by service record book entries.

950727:  Chief of Naval Personnel recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

950811:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950830 under other than honorable conditions for misconduct due to commission of a serious offense - absence without leave (30 days or more) (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).

Issues 1-5, 8. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. 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 a court-martial conviction for two violations of Article 86, unauthorized absence, of the UCMJ. The Applicant’s second violation, unauthorized absence in excess of 30 days, constitutes a serious offense. The Applicant accumulated at total of 272 days of unauthorized absence. 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 following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 naval 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. As of this time, the Applicant has not provided sufficient documentation for the Board to consider. Relief denied.

Issues 6-7. The Applicant contends that his problems in the Navy can be attributed to his youth, immaturity and “deprived background.” While he may feel that his turbulent upbringing and immaturity were the underlying cause of his misconduct, 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.

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. 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. 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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

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 “ http://Boards.law.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:

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


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