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NAVY | DRB | 2005_Navy | ND0500135
Original file (ND0500135.rtf) Auto-classification: Denied


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

ex-MMFR, USN
Docket No. ND05-00135

Applicant’s Request
The application for discharge review was received on 20041029. 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.
In the acknowledgement letter the Applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, DC area. The Applicant did not respond.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20050201. 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
Applicant’s issues, as stated on the application:

1.       “I AM REQUESTING FOR AN UPGRADE OF MY DISCHARGE (OTHER THAN HONORABLE) CONDITIONS TO GENERAL/ UNDER HONORABLE CONDITIONS. IT HAS BEE 14 YEARS SINCE I HAVE BEEN DISCHARGED FORM THE MILITARY AND WITH ALL DUE RESPECT TO THE U.S. NAVY, MY COMRADS AND COMMADERS, I OFFER MY HUMBLE APOLOGY FOR COMMITTING A TERRIBLE, YET IRRESPONSIBLE ACT OF GOING AWOL IN 1991. I WAS YOUNG, INEXPERIENCED, AND CONFUSED WHEN I WAS NOTIFIED THAT MY MOTHER HAD PASSED AWAY, YOU ALLOWE ME TO ATTEND HER FUNERAL, BUT IT WAS SO DEVISTATING I FOUND IT HARD TO LEAVE BECAUSE I WAS SO AFRAID. PLEASE UNDERSTAND AND HONOR MY REQUEST TO UPGRADE MY DISCHARGE TO GET A JOB AND PROVIDE FOR MY FAMILY. PLEASE AND THANK YOU FOR YOUR KIND CONSIDERATION.”

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)     860327 - 860331  COG
         Active: USN                        860401 - 900330  HON

 Period of Service Under Review :
Date of Enlistment: 900331               Date of Discharge: 910918

 Length of Service (years, months, days):

         Active: 01 01 18
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 24

 Highest Rate: MM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.90 (1)             Behavior: 4.00 (1)                OTA : 4.00

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR (2), NAVY “E” RIBBON, USCGSOSR (2), NDSM

 Days of Unauthorized Absence: 119

 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 :

910213:  Applicant declared a deserter having been UA since 910109.

910508:  Applicant apprehended by civilian authorities (UA 119 days).


910523:  Special Court Martial:
         Charge I: violation of the UCMJ, Article 86, (1 specifications):
         Specification 1: Unauthorized absence 910109 - 910508, [119 days/A.]
         Findings: to Charge I and specification 1 thereunder, guilty.
         Sentence: CHL for 45 days, forfeiture of $400 per month for (4) months(s), reduction to E-1.
        
910528:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
910529:  Applicant advised of rights and having elected not to 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.
910604:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

910906:  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 19910918 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).

Issue 1: Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the Applicant’s enlistment. While he may feel that his family problems, youth and immaturity were contributing factors, they do not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service. His service record is marred by award of special court-martial for violating the UCMJ, Article 86 (UA for 119 days) thus substantiating the misconduct . Unauthorized absence in excess of 30 days is considered a serious offense. 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 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. 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.

 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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