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NAVY | DRB | 2005_Navy | ND0500894
Original file (ND0500894.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-SR, USN
Docket No. ND05-00894

Applicant’s Request
The application for discharge review was received on 20050427. The Applicant requests the Discharge 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 designate a representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20050811. 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 by reason of misconduct due to commission of serious offense - absent without leave - 30 days or more .



 PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application or attached document/letter:

 “To Whom It May Concern,

I, E _ D _ III (Applicant) , am writing to get my discharge upgraded . I know that all of the things that I have done while I was in the navy is not tolerable but I was young then . I never realized that the thing I had done then would effect the future . Now I realize that the navy was my bigger and better future but it’s too late now . So now I am stuck with the decision that I have made when

I was younger . I am older and a little wiser now . I understand now that I have made the worse mistake . But now I would like to get that changed . Since 2000, I have been struggling as a civilian with an O .T.H . discharge from the military . There is a lot of things that I have learned from the navy, that I am able to use out here in society . But because of that discharge, I am able to get by background checks.

When I finally get a job that I am qualified for, they call back or send me a letter saying that I didn’t pass the background check and I am embarrassed of that because that is the only thing on there . I have been all the way to Orlando, Florida to find a job doing security for Argenbright Security Company and then to Jacksonville for security . But when I moved back to South Carolina to be chosen to home and family , I am basically labeled as a statistic and that means I will never have a chance at getting jobs that I know I can do . Since I have been out of the military, I have been doing nothing but struggle job to job and haven’t been in any trouble . So I am asking would you please consider upgrading my discharge.

 Thank You”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Character Reference letter from Applicant’s mother dated April 15, 2005
Certificate of appreciation from 1 st Battalion, 34 th Infantry Regiment, United States Army
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19960127 - 19960605               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19960606             Date of Discharge: 20000526

 Length of Service (years, months, days):

         Active: 03 11 20 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 372 days
         Confinement:              49 days

 Age at Entry: 17 (Parental Consent)

 Years Contracted: 4

 Education Level: 12                                 AFQT: 48

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NA*                           Behavior: NA*             OTA: NA*

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214) : M16A1 Marksman Ribbon
* Not Available


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

UNDER OTHER THAN HONORABLE CONDITIONS/ MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).
Chronological Listing of Significant Service Events :

970401:  Applicant to unauthorized absence at 0001 on 970401.

970422:  Applicant apprehended by civil authorities solely on the basis of absence.

 970505:  Applicant from unauthorized absence at 0800 on 970505 (21 days/apprehended).
970601:  Applicant to unauthorized absence at 0730 on 970601.

 970721:  Applicant from unauthorized absence at 0800 on 970721 (40 days/surrendered).
970913:  Summary Court-Martial. No further information in service record. [Extracted from NAVPERS 1070/604.]
990625:  Special Court Martial:
         Charge I: violation of the UCMJ, Article 86:
         Specification: Without authority absent himself from his organization from on or about 13 July 1998 to 2 May 1999 (311 days).
         Findings: to Charge and specification thereunder, guilty.
         Sentence: Confinement for 90 days, forfeiture of $600 per month for 3 months, reduction to E-1.
         CA 991108: Sentence approved and ordered executed.

990712:  Applicant to confinement.

 990823:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct - commission of a serious offense.

990823:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
990829:  Applicant from confinement.

 000131:  Commanding Officer, Naval Consolidated Brig Miramar, San Diego, CA recommended discharge with an under other than honorable conditions by reason of misconduct due to commission of a serious offense. Commanding Officer’s comments: “Very strongly recommend that Seaman Recruit E_ D_ (Applicant), U.S. Navy, be separated from the naval service with a discharge characterization of Other Than Honorable (OTH). His offenses clearly show that he cannot and will not conform to military standards and Navy Core Values, and demonstrates a clear and flagrant disregard for authority and regulations. Seaman Recruit D_ (Applicant) is not recommended for reenlistment and has no potential for future service in any military organization.”

 000328:  Chief of Naval Personnel recommended to Assistant Secretary of the Navy (Manpower and Reserve Affairs), Applicant’s discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.
000426:  Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.
000502:  CNPC directed the Applicant's discharge with under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20000526 by reason of misconduct due to commission of serious offense - absent without leave - 30 days or more (A) with a service characterization of under other than honorable conditions. 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 (B and C).

Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question. No such impropriety or inequity is evident during the Applicant’s enlistment. 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. T he Applicant’s service was marred by three periods of unauthorized absence totaling 372 days. This misconduct resulted in convictions at both summary and special court-martial. Under applicable regulations, a violation of UCMJ Article 86, unauthorized absence in excess of 30 days, 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. Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service. Relief is not warranted.

There is no requirement or law that grants recharacterization solely on the issue of enhancing employment opportunities and this issue does not serve to provide a foundation upon which the Board can grant relief. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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), Change 28, effective
30 Mar 00 until 29 Aug 00, 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 V, Para 502, Propriety .

 C. 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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