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NAVY | DRB | 2004_Navy | ND04-01461
Original file (ND04-01461.rtf) Auto-classification: Denied


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

ex-AA, USN
Docket No. ND04-01461

Applicant’s Request
The application for discharge review was received on 20040924. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant listed Military Order of the Purple Heart as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050107. 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
Issues submitted by Applicant’s counsel/representative ( Military Order of the Purple Heart (MOPH)):
“ Request for Administrative Review.

The veteran was discharged for misconduct (AWOL) with an Other Than Honorable Discharge, under 38 CFR 3.12 (6) (i) and (ii) the VA should evaluate an absence to establish basis eligibility to receive VA benefits: “The following factors will be considered in determining whether there are compelling circumstances the prolonged unauthorized absence. (i) Length and character of service exclusive of the period of prolonged AWOL. Service exclusive of the prolonged AWOL should generally be of such quality and length that it can be characterized as honest, faithful and meritorious and of benefit to the nation and (ii) reasons for going AWOL.

A.       Character of Service (38 CFR 3.12)(c)(6)(i):

I.       The Veteran, T_ P_ P_, entered Naval Service July 6, 1992 at the age of 19. He served for 2 years, one month, and 15 days. Among his decorations was the Southwest Asia Service Medal with the Bronze Star,

Armed Forces Expeditionary Medal, and Joint Meritorious Unit Award. He is a veteran of the Somalia Police Action.

2.       His Enlisted Performance Record indicated over a 3.7 rating before his AWOL and a 3.2 after.

3.       After his return to duty, he served in the Bosnia War zone.

4.       We submit that his service exclusive of AWOL was “honest, faithful, meritorious and of benefit to the nation.”

B.       Reasons for AWOL (38 CFR 3.12)(c)(6)(ii):

1.       In the endorsed separation packet, his absence of 78 days began 29 June
1994 to 15 September 1994. At the time of his absence he was in the hospital as a result of a motorcycle accident on 13 May 1994. He returned voluntarily. He was not apprehended. Despite this fact, the Navy charged him with desertion. Additionally he was charged with missing movement through design, even though he was a patient in a Navy Hospital at the time. (We submit that these charges have no merit.) He was also charged with simple AWOL of 78 days. Without benefit of legal counsel he waived his rights and accepted the 0TH.

2.       The reasons for his absence are clearly described by the veteran and his mother. The regulation recognized that family situations should be considered in evaluating these situations. The veteran was a young man at the time, who was not healed of his injuries from the accident and also burdened by the dissolution of his mothers marriage. As an only child without a father he was sensitive to his mother’s needs. “Consideration should be given to how the situation appeared to the person himself.” Thank you for your assistance in this matter .”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant
Letter from Applicant’s mother
MOPH cover letter

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     920529 - 920705  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 920706               Date of Discharge: 941130

 Length of Service (years, months, days):

         Active: 02 04 25
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 33

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (3)             Behavior: 3.40 (3)                OTA: 3.54

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, SASM (w/B*), AFEM, JMUA

Days of Unauthorized Absence: 78

 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 :

941018:  NJP for violation of UCMJ, Article 86: UA from 940629 to 940915 (78 days/S).
         Award: Forfeiture of $466 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.

941019:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
941019:  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.
941027:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

941123:  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 19941130 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).

 Issues 1-4. 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 for an extended period of unauthorized absence. Despite the positive aspects of the Applicant’s service, his conduct 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. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety occurred 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. 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. Evidence of continuing educational pursuits, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct. Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his 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 – COMMISSION OF A SERIOUS OFFENSE.

 B. 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.

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

 D. 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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