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NAVY | DRB | 2005_Navy | ND0500424
Original file (ND0500424.rtf) Auto-classification: Denied


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

ex-AS3, USN
Docket No. ND05-00424

Applicant’s Request
The application for discharge review was received on 20050105. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050713. 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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605). Applicant discharged in absentia.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. " I received the discharge, incidently & unapropriately because I was fully informed to my COC during my (UA) period. PL. review this case to honorable, and justify me.

 At the time of my Discharge, my new command was Naval Station Mayport w AIMD Shop. I took leave from my Command from 20th July 2003 to 11th Aug 2003 to go to my country PAKISTAN. But travel documents and I get these papers from court after verification. All this process takes 9 to 10 months. During this time I contact to my COC and they said, you contact to any US Consulate or US Embassy. So, I got the No. Of CAPTAIN B_ who was the US Naval Attaché in Pakistan and let him know the entire situation. I also met with him in US Consulate, Karachi. I was fully contact with him on his cell phone and his email address. But depending upon long UA period, the Navy legal decided to give me DISCH UNDER HONORABLE."

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2)
Letter from R_ F. L_, Veteran’s Service Officer, dated February 10, 2005
Certificate of Completion, Aviation Support Equipment Technician Course, dated
May 12, 2003
Certificate of Completion, SE Hyd. IMA Tech Course, dated July 3, 2003
Navy Evaluation Report and Counseling Record for period from June 16, 2002 to
December 16, 2002
Certificate of Commendation for period from February 2001 to December 2002
E-mail chain between Applicant and Naval Attach é , Islamabad, Pakistan, dated between
January 27, 2004 and January 27, 2004
E-mail chain between Applicant and Naval Attach é , Islamabad, Pakistan, dated between
November 18, 2003 and December 19, 2003 (2 pages)
E-mail from Naval Attach é , Islamabad, Pakistan to Applicant, dated February 15, 2004
E-mail chain between Applicant and Naval Attach é , Islamabad, Pakistan, ending date of
April 4, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     000914 - 000926  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 000927               Date of Discharge: 040414

 Length of Service (years, months, days):

         Active: 03 06 18         (Does not exclude lost time)
         Inactive: None

 Age at Entry: 29                          Years Contracted: 4 (7 months extension)

 Education Level: 14                        AFQT: 38

 Highest Rate: AS3

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 3.00 (4)             Behavior: 3.50 (4)                OTA: 3.24

 Military Decorations: None

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

 Days of Unauthorized Absence: 237

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

030919:  Applicant declared a deserter having been on unauthorized absence since 0700 on 030821.
030922:  AIMD MAYPORT FL releases message to NAVPERSCOM DET GREAT LAKES IL declaring the Applicant a deserter. Message states that attempts were made unsuccessfully to contact Applicant's next-of-kin via telephone and that letter of notification of separation proceedings was forwarded to Applicant at his mother's leave address.

040223:  Applicant acknowledges receipt, and responds to AIMD MAYPORT FL Administrative Separation Processing Notice dated 040116 stating command's intended recommendation for discharge by reason of misconduct due to the commission of a serious offense. Applicant advised that the least favorable characterization of service possible is General (Under Honorable Conditions).
040223:  Applicant advised of his rights and having elected not to consult with qualified counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation, the right to submit a written statement for consideration by the separation authority, and the right to GCMCA review.
040323:  Officer-in-Charge, Aircraft Intermediate Maintenance Detachment, Naval Station, Mayport, FL recommends Applicant's administrative separation with a characterization of general (under honorable conditions) by reason of misconduct due to the commission of a serious offense as evidenced by his current period of unauthorized absence since 030821.
 OIC’s comments: "Petty Officer B_ (Applicant) reported to AIMD Mayport on 03 July 2003 from the USS JOHN F. KENNEDY (CV-67). Upon reporting, AS3 B_ (Applicant) stated that he was unable to take personal leave to visit his family in Pakistan while assigned to his previous command, and requested 24 days leave. Petty Officer B_ (Applicant) is a Pakistani citizen, and after checking all appropriate references and web sites for travel restrictions and requirements, he was granted leave to visit his family in Pakistan. The dates requested were from 1500 03JUL17 to 0700 03AUG11 (enclosure (1)). On 11 August 2003, AS3 B_ (Applicant) failed to report for work, placing him in a U.A. status. On 15 August 2003, AS3 B_ (Applicant) called the command, stating that he missed his flight back to the states due to his mother becoming ill, and requested additional leave to spend with his mother, and to have time to rebook his flight. He was authorized a 10-day extension, with his leave terminating at 0700 03AUG21. He stated that understood this, yet failed to report to work as instructed at the end of his leave extension. The command did not hear anything further from AS3 B_ (Applicant), and he was declared a deserter via AIMD MAYPORT FL message DTG R 221830Z Sep 03 (enclosure (2)). All required desertion messages and notification letters were sent, including a letter to his home of record in Pakistan. Some time after he was declared a deserter, AS3 B_ (Applicant) began to send e-mail to his Division Officer at AIMD Mayport. The information AS3 B_ (Applicant) wrote in his e-mail stated that his passport had been seized by Pakistani authorities when he entered the country due to “an irregularity”. He stated that he was charged with possession of a false passport, as he actually had two of them on his person, and his place of birth was different on each passport. He assured the command that this was a misunderstand-ing, and that he would have it resolved and would return.
Petty Officer B_ (Applicant) was instructed to contact officials at the American Embassy in Islamabad for assistance. Captain M_ B_, U.S. Navy, Naval Attaché in Pakistan began to receive e-mail from AS3 B_ (Applicant). Captain B_ indicated that he felt the member was not doing all that he could to resolve the situation. Captain B_ further relayed that Petty Officer B_ (Applicant) was inconsistent in his answers to questions, would not cooperate with his instructions/suggestions, and would not obey the orders he was given. Additionally, Petty Officer B_ (Applicant), on several occasions, would not report to various places as instructed by Captain B_. Communications with Petty Officer B_ (Applicant) since being declared a deserter have been very sporadic, and in each short e-mail sent, AS3 B_ (Applicant) has indicated he is “working on the situation” and expects it to be resolved “soon.” But his measures to settle this “misunderstanding” have been dragging on for seven months with no resolution.
Petty Officer B_ (Applicant) was served with a Notification of Administrative Separation Processing (enclosure (3)), on 23 February 2004 and indicated that he desired to submit a written statement for consideration by the separation authority. He also requested General Courts-Martial Convening Authority Review. Petty Officer B_ (Applicant) was given the name, e-mail address, and phone number of both the OIC, AIMD Mayport and LNCS J_ of the Naval Station Mayport SJA's Office to submit his statement, but has yet to make any attempt to contact either.
Petty Officer B_ (Applicant)’s Commission of a Serious Offense warrants his immediate separation from Naval service. Through his actions, he has indicated his unwillingness to comply with the Navy’s Standards of Conduct. His failure to submit a written statement signifies that he has no desire to return to active Naval service, and does not object to separation."
040323:  Commander, Helicopter Anti-Submarine Light Wing, U.S. Atlantic Fleet, Naval Station, Mayport, FL positively endorses recommendation for Applicant's discharge with a characterization of general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

040330:  GCMCA (Commander, Navy Region Southeast, Naval Air Station, Jacksonville, FL) reviewed Applicant's discharge package and directed his discharge in absentia with a characterization of general (under honorable conditions) by reason of misconduct due to the commission of a serious offense - desertion.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged, in absentia, on 20040414 with a characterization of general (under honorable conditions) for misconduct due to commission of a serious offense - desertion (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 that he kept his chain-of-command informed throughout his entire leave period/absence, even contacting the U.S. Naval Attaché in his home country as instructed by his command. The Applicant implies that he took all necessary and appropriate action to remedy his situation and this does not warrant discharge with a general characterization of service. The NDRB advises the Applicant that, despite a service member’s attempts to remedy their misconduct, certain serious offenses warrant separation from the Naval service in order to maintain proper order and discipline. The Applicant's misconduct is clearly reflected in his service record, which is marred by a documented 237-day long period of unauthorized absence. The record of the administrative separation proceedings reflect that the Applicant:
o        was passive in his attempts to resolve travel document irregularities he claimed as the cause of his failure to report off of leave as directed by his command;
o        was inconsistent in his answers to questions asked by U.S. Consulate/Embassy officials;
o        would not cooperate with instructions/suggestions from U.S. Consulate/Embassy officials;
o        would not obey the lawful orders he was given including, on several occasions, not reporting to various locations as instructed by the U.S. Naval Attaché; and
o        maintained sporadic communications between himself and U.S. Consulate/ Embassy officials after being declared a deserter.
 The record reflects that the Applicant's efforts to remedy his situation and return to his command were passive, failed to follow guidance, and failed to demonstrate a desire to comply with orders. The actions reflect his willful failure to meet the requirements of his contract with the U.S. Navy, and fall far short of that required for an upgrade of his characterization of service. Relief on this basis is denied.

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 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 any documentation for the Board to consider. 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. 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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