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NAVY | DRB | 2005_Navy | ND0501239
Original file (ND0501239.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. ND05-01239

Applicant’s Request
The application for discharge review was received on 20050714. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). 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 20060216. 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 and reason for 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 and attached document/letter:

“Under the discharge I have now I am not able to reenter the Armed Forces.

 Dear United States Navy,

I am writing you this letter in hopes that the Navy will consider upgrading my discharge from an Other Than Honorable Discharge (RE-4 ) to a General Discharge Under Honorable Circumstances ( RE-3).

I do not have a good reason for leaving the Navy like I did on February 08, 2000, besides the fact that any reason I gave would not be good enough. I took an oath to defend this country and to obey the orders given to me by my commanding officers and I didn’t. I would like now more than anything to uphold the oath I took back in 1999.

Since that day in 2000 I have kept steady employment. I was a delivery driver for three years and now I am currently a professional welder for a large dairy construction company which I enjoy very much; but it isn’t enough. I am seeing people every day leaving to fight in a war that I believe in and I can’t help but feel angry at the fact I am here sitting in my comfortable home while men and women are sacrificing themselves to keep what I and everyone in this great country have. I had a job in the military saving lives and I would be greatly honored to get that chance again.

I have been married now going on four years to my beautiful wife that means everything to me. In this time I have adopted her three children for my own. I do not want my children to grow up knowing that I made a huge mistake like leaving the Navy and not trying to right what I have wronged. I want them to know that I did my part in defending the values and way of life we have in this great country; but most of all I want my family to be proud of me.

Finally, I want to rejoin the United States Armed Forces and uphold the oath that I took. That oath means more to me now than any accomplishment I will ever have. I feel I would play an important role in the military if given the chance to redeem myself. I want to thank you for reviewing this.

Sincerely,
[signed]
J_ A. B_ (Applicant)”


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter of Service, Idaho Army National Guard, H_ P. C_ CSM, IDARNG Command Sergeant Major and G_ E. T_ LTC, AR, IDARNG, Commanding, dtd July 11, 2003
Applicant’s Discharge Certificate, Army National Guard, Commanding General, State of Idaho, dtd November 13, 2003
Character Reference ltr from J_ L_, dtd July 8, 2005
Character Reference ltr from T_ C_, dtd July 10, 2005
Character Reference ltr from A_ B_, dtd July 10, 2005
Character Reference ltr from C_ C_, dtd July 10, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USARNG            19960701-19960924                 (Rel from ADT)
         Inactive: USARNG                  19960925-19980402                 ELS

 Period of Service Under Review :
Date of Enlistment: 19990429             Date of Discharge: 20000208

 Length of Service (years, months, days):

         Active: 00 09 10
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence:    220 days
         Confinement:                       None

 Age at Entry: 21

 Years Contracted: 4 (12 month extension)

 Education Level: 10+                                AFQT: 53

 Highest Rate: SR

 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): Army Service Ribbon, National Defense Service Medal
* 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 :

990607:  Applicant to unauthorized absence at 2020 on 990607.

 990713:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 990707 having been an unauthorized absentee since 2020, 990607 from NAVCRUITRACOM Great Lakes, IL.
000113:  Applicant from unauthorized absence at 2355 on 000113 (220 days/surrendered).
000126:  NJP for violation of UCMJ, Article 86:
 Specification: In that SR J_ A. B_ (Applicant), U. S. Navy, recruit Training Command, Great Lakes, Illinois, on active duty, did, on or about 07 June 1999, without authority, absent himself from his organization, to wit: Recruit Training Command, located at Great Lakes, Illinois, and did remain so absent until on or about 13 January 2000.
         Award: Forfeiture of $217.00 pay per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.
000201:  Applicant notified of intended recommendation for discharge by reason of misconduct due to commission of a serious offense as evidenced by OIC’s NJP of 20000126. Applicant notified that the least favorable characterization of service possible is under other than honorable conditions.

000201:  Applicant advised of rights and having elected not to consult with counsel with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
000204:  Commanding Officer, Recruit Training Command, recommended to Commander, Naval Training Center, Great Lakes that the Applicant be discharged under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by OIC’s NJP of 20000126. Commanding Officer’s comments: “SR B_ (Applicant) is an administrative and discipline burden. His conduct represents a significant departure from the conduct expected from members of the naval service. SR B_ has no potential for further useful naval service. I recommend separation from the naval service with an Other Than Honorable discharge. Reentry Code: RE-4.”

000207:  Commander, Naval Training Center, Great Lakes, authorized 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 20000208 by reason of misconduct due to commission of serious offense under other than honorable conditions (A and 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).

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 a member's conduct involves one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. T he Applicant’s period of active service was marred by a 220 day unauthorized absence. This misconduct resulted in nonjudicial punishment proceedings for violations of UCMJ Article 86, unauthorized absence in excess of 30 days. 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 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 could 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 Board received and considered all of the Applicant’s submissions, including his records of service with the Idaho Army National Guard and numerous character reference letters. After careful consideration, the Board concluded the Applicant’s post-service achievements have been insufficient to mitigate his misconduct while in the Naval service. Relief denied.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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 additional evidence related to this 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 18, effective
12 Dec 97 until 29 Mar 00, Article 1910-142 [formerly 3630605]. SEPARATION 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 86, unauthorized absence in excess of 30 days.

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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