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NAVY | DRB | 2005_Navy | ND0500371
Original file (ND0500371.rtf) Auto-classification: Denied


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

ex-AA, USN
Docket No. ND05-00371

Applicant’s Request
The application for discharge review was received on 20041227. The Applicant requests the characterization of service received at the time of discharge be changed to general (under honorable conditions). The Applicant requested a documentary record review. The Applicant did not list a representative on the DD Form 293.

Decision

A documentary 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 1910-142.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “My discharge was improper because it was based solely on one incident. As my enclosed documents state, I was a reliable, dependable and conscience worker and airman aboard (LHA-4) U.S.S. NASSAU from 26 Aug 2002 until 29 May 2003 uner deployment I was accounted for at all times, safly offloaded 265 tons of L-form ammunition in support of Operation Iraqi Freedom and also stood several hundred hours of gun watch providing security for the ship in hostile territory.
The discharge given was unjust and I feel that my service record speaks for itself and was not taken into account. I have admitted my error in judgement for the offense I have committed and ask for my other than honorable discharge be upgraded to general under honorable conditions”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Evaluation Report and Counseling Record, dated October 15, 2003
Evaluation Report and Counseling Record, dated July 24, 2002
Evaluation Report and Counseling Record, dated July 21, 2003
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)              010915 - 010926  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 010927               Date of Discharge: 040204

 Length of Service (years, months, days):

         Active: 02 04 08 (Does not exclude lost time)
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4 (14 months extension)

 Education Level: 12                        AFQT: 58

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (3)*            Behavior: 2.67 (3)                OTA: 3.45

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, AFEM, SSDR

 Days of Unauthorized Absence: 33

*Extracted from supporting documents provided by the Applicant

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 .

Chronological Listing of Significant Service Events :

031201:  Applicant to unauthorized absence 0725, 031201.

 040102:  Applicant from unauthorized absence 1135, 040102 (33 days/surrendered). EAOS changed to 051028.
040121:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
         Award: Forfeiture of $668 per month for 1 month, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
040121:  Applicant notified of administrative separation processing by reason of misconduct due to commission of a serious offense. Least favorable characterization of service possible is under other than honorable.
040121:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ, Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation

040127:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense for absent without leave (30 days or more).

040127:  Commander, Naval Personnel Development Command directed the Applicant's discharge under other than honorable conditions by reason of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040204 under other than honorable conditions for misconduct due to absent without leave - 30 days or more (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: The Applicant states his discharge was based on one isolated incident with no other infractions. 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 award of nonjudicial punishment (NJP) for violation of UCMJ, Article 86 (Unauthorized absence for 33 days) which is considered a serious offense. 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 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), 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. 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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