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NAVY | DRB | 2005_Navy | ND0500585
Original file (ND0500585.rtf) Auto-classification: Denied


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

ex-OSSR, USN
Docket No. ND05-00585

Applicant’s Request
The application for discharge review was received on 20050216. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. 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 20050602. 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. “ My discharge was inequitable because I had no control of my ship leaving port 1 day early. I did continue to check in at the duty OOD station for NAS Alameda. Upon return of the ship I immediately turned myself in, to the MAA, and excepted full responsibility for being UA. I was young and stupid and if I had to do it again I would definatly been on the ship .”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
No additional documentation was submitted.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     900719 - 910701  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 910702      Date of Discharge: 930220

 Length of Service (years, months, days):
         Active: 01 07 19 (Does not exclude lost time)
         Inactive: None

 Age at Entry: 17 (Parental Consent)     Years Contracted: 4 (24 months extension)

 Education Level: 12      AFQT: 66
Highest Rate: OSSA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.00 (1)             Behavior: 1.00 (1)                OTA : 1.00

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 94

 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 :

910703:  Retention warning: Applicant advised that he was being retained in the Naval service despite his defective enlistment and induction due to fraudulent entry into Naval service as evidenced by his failure to disclose his pre-service civil involvement, to wit: 9012 No seatbelt, Vallejo, CA. Paid $50.00 fine; 9002 Fixit ticket x2, modified exhaust, Vallejo and Fairfield, CA, repaired. Applicant further advised that any further deficiencies in performance or conduct may result in processing for administrative separation.

 921007:  Applicant to unauthorized absence (from USS ABRAHAM LINCOLN
         (CVN 72)) at 0730 on 921007.

 921106:  Applicant declared a deserter.

930108:  Applicant apprehended by civilian authorities at 0115 on 930108 at Vallejo, CA.

930109:  Applicant from unauthorized absence (returned to military authorities at USS ABRAHAM LINCOLN (CVN 72)) at 0600 on 930109 (94 days/ apprehended).
930119:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence from 921007 until apprehended on 930109.
          Finding: to Charge I, and the specification thereunder, guilty.
          Sentence: Forfeiture of $540.00 pay per month for one month, confinement on bread and water for 3 days, confinement for 21 days, reduced to E-1.
         CA action 930125: Sentence approved and ordered executed except for that part of the sentence extending to confinement on bread and water for 3 days, which is hereby remitted.

930119:  Applicant notified of intended recommendation for administrative discharge by reason of misconduct due to the commission of a serious offense. Applicant further notified that if separation is approved, the characterization of service may be Under Other Than Honorable Conditions.
930119:  Applicant advised of rights and, having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
930204:  Commanding Officer, USS ABRAHAM LINCOLN (CVN 72) recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. Commanding Officer's comments (verbatim): OSSR B_ is a below average worker who requires constant supervision. His subpar performance and unwillingness to conform to the Navy's rules and regulations make him a burden to this command and the Navy. He does not possess any potential for further useful Naval service.

930212:  BUPERS WASHINGTON DC 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 19930220 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, D, and E).

Issue 1: The Applicant contends that he was not responsible for the period of unauthorized absence, which eventually led to his discharge, because he was young and immature and had no control over his ship's movement one day earlier than he believed it to be. While he may feel that his immaturity and his being unaware of the ship's schedule mitigates his misconduct, the record does not contain any evidence that the Applicant was either not responsible for his actions or did not willfully and negligently absent himself from his command. The Applicant's misconduct is clearly documented by his Summary Court-Martial for violation of UCMJ Article 86 (unauthorized absence for 94 days). The fact that the Applicant was apprehended by civil authorities further demonstrated his unwillingness to conform to Navy regulations and shows he was unfit for further service. The applicant, on 930119, after acknowledging his understanding of the rights afforded to him as part of the administrative discharge process and the repercussions of being administratively separated with an other than honorable characterization of service, elected to waive all of those rights. The evidence of record does not show that the Applicant should not be held accountable for his actions. 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. The Applicant has not provided any documentation for the Board to consider. Relief on this basis is not possible at this time.




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), effective 15 Aug 91 until
04 Mar 93, 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 .
E Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 86 Unauthorized absence for a period in excess of 30 days if adjudged at a Special or General Court-Martial.

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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