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NAVY | DRB | 2005_Navy | ND0500939
Original file (ND0500939.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-AR, USN
Docket No. ND05-00939

Applicant’s Request
The application for discharge review was received on 20050510. The Applicant requested that his characterization of service received at the time of discharge be changed to honorable. The Applicant requested a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area. The Applicant designated a private representative on the DD Form 293. Subsequent to the application, the private representative requested the Board to remove her as the representative. The Applicant failed to respond by the deadline date to a letter requiring the Applicant to notify the Naval Discharge Review Board of his intention to be present for the requested personal appearance hearing. Therefore, a documentary review was conducted, and the Applicant is not eligible for further review by this Board.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060119. After a thorough review of all available 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 characterization of the discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to commission of a serious offense.
PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“Because I cannot get some of the benefits I’m entitled to get because of this discharge.

The Lt. over me in the Squadron I was assigned to, called me in her office because she said she had to talk to me. She said if I really didn’t like being in the military, she could help me get out quickly. She did that but I still don’t know what type of discharge I got. Whether it was honorable or not.”
Applicant’s Remarks: (Taken from the DD Form 293)

“God Bless you If you can help me out regarding my case and the request I’m asking for.”

 Documentation
The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19920618 - 19920624      COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 19920625             Date of Discharge: 19930316

 Length of Service (years, months, days):

         Active: 00 08 22
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 43 days
         Confinement:              none

 Age at Entry: 19

 Years Contracted: 4

 Education Level: 12                                 AFQT: 37

 Highest Rate: AR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.8 (1)     Behavior: 2.8 (1)                 OTA: 2.80 (1)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal


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

UNDER OTHER THAN HONORABLE CONDITIONS/ Misconduct - commission of a serious offense , authority: MILPERSMAN, Article 3630600.
Chronological Listing of Significant Service Events :

920626:  Retention Warning: Advised of deficiency (defective enlistment and induction due to fraudulent entry into naval service i.e. failure to disclose petty theft of 6/87, Metter, GA) , notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
920701:  Retention Warning: Advised of deficiency (non-swim qualified), notified of corrective actions and assistance available, advised of consequences of further deficiencies.

 921021:  Applicant to unauthorized absence at 1300 on 921021.

 921110:  Applicant surrendered to NAS Jacksonville, Fl at 0600. Issued Technical Arrest Order and directed to report to his squadron no later than 1859 on 921110. Applicant failed to report, unauthorized absence continues.
921113:  Applicant from unauthorized absence at 1230 on 921113 (22 days/surrendered). EAOS changed to 960717.
921113:  Branch Medical Clinic Naval Station, Norfolk, VA found the Applicant found fit for confinement.

 921116:  NJP for a violation of the UCMJ, Article 86 (unauthorized absence, 921021-921113).
         Award: Correctional Custody Unit, for 30 days. No indication of appeal in the record.

 921117:  Branch Medical Clinic Naval Station, Norfolk, VA found the Applicant found fit for Correctional Custody Unit, Norfolk, VA

921118:  Applicant to Correctional Custody Unit, Norfolk, VA.

921218:  Applicant released from Correctional Custody Unit, Norfolk, VA.
930107:  Applicant to unauthorized absence at 0845 on 930107.

 930108:  Applicant from unauthorized absence at 1445 on 930108 (1 day/surrendered). EAOS changed to 960718.
930121:  Retention Warning: Advised of deficiency (NJP – unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 930126:  Applicant to unauthorized absence at 0845 on 930126.

 930129:  Applicant from unauthorized absence at 1115 on 930129 (3 days/surrendered). EAOS changed to 960721.
930129:  NJP for violations of the UCMJ, Article 86 (unauthorized absence, 930108 – 930109) and Article 92 (failure to obey a lawful order).
         Award: Forfeiture of $407 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.

930201:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to commission of a serious offense.
930201:  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.
930210:  Commanding Officer, Helicopter Anti-Submarine Squadron Light THIRTY-TWO recommended to Chief of Naval Personnel AR M_’s (Applicant) discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. Commanding Officer’s comments: “AR M_ (Applicant) has dramatically demonstrated an inability to adjust to the Navy as evidenced by his repeated unauthorized absences and difficulties accepting authority. Although AR M_ (Applicant) has been counseled to help alleviate any personal problems, his conduct has continued to decline. He lacks any motivation necessary to further his Naval career. An administrative burden to the Navy, AR M_ (Applicant) himself seeks the most expedient path available to end his Naval service. Considering the nature of his offenses, recommend AR A_ W. M_ (Applicant) be separated from the Naval Service with an Other Than Honorable Discharge.”

930218:  Applicant to unauthorized absence at 1800 on 930218.

930302:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

 930308:  Applicant from unauthorized absence at 0930 on 930308 (17 days/surrendered). EAOS changed to 960808.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19930316 by reason of misconduct due to the commission of a serious offense (A and B) with a service characterization of under other than honorable conditions. After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

 To be legally sufficient, a finding of misconduct due to the commission of a serious offense requires only a showing (by a preponderance of the evidence) that misconduct, which would warrant a punitive discharge if tried by special or general court-martial, has occurred. When the service of a member of the U.S. Navy has met the standard of acceptable conduct and performance 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 outweigh the positive aspects of the member's military record. T he Applicant’s service was flawed by two nonjudicial punishments (NJP) for violations of the UCMJ, Article 86 (unauthorized absence, 2 specifications totaling 23 days) and Article 92 (failure to obey a lawful order). Furthermore, the Applicant’s record documents two unadjudicated violations of UCMJ, Article 86 (totaling 20 days) and three retention warnings. Reference (A) defines a violation of the UCMJ Article 92 (failure to obey a lawful order) as the commission of a serious offense, the misconduct for which the Applicant was discharged. Applicable regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment. Separations under these conditions generally result in a less than honorable characterization of service. Relief denied.

The Applicant requested that his discharge be upgraded in order to receive the benefits he is entitled too. The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the purpose of enhancing medical, housing, employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. This issue is without merit. Relief is not warranted.

In the Applicant’s case the NDRB has no authority to provide an additional review. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.


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. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 92 (failure to obey a lawful order).

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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