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NAVY | DRB | 2005_Navy | ND0501465
Original file (ND0501465.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. ND05-01465

Applicant’s Request
The application for discharge review was received on 20050908. 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 personal appearance hearing discharge review before a traveling panel closest to Philadelphia, PA. The Applicant did not designate a representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in Washington, DC at the Washington Navy Yard. The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060517. 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 civil conviction .

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 No issues were submitted by the Applicant.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20000511 – 20001102               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20001103             Date of Discharge: 20020605

 Length of Service (years, months, days):

         Active: 01 07 02 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 194 days
         Confinement:              none

 Age at Entry: 18

Years Contracted: 4

Education Level: 10                                 AFQT: 53

 Highest Rate: AA

 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): National Defense Service Medal.
* Not Available


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

UNDER OTHER THAN HONORABLE CONDITIONS/ MISCONDUCT, authority: MILPERSMAN, Article 1910-144 (formerly 3630610).
Chronological Listing of Significant Service Events :

010404:  NJP for violation of UCMJ, Article 86 (6 specs): Unauthorized absence.
         Violation of UCMJ, Article 92: Orders violation.
         Award: Forfeiture of $521 per month for 2 months (suspended for 6 months), correctional custody for 30 days. No indication of appeal in the record.
010404:  Retention Warning: Advised of deficiency (Commanding Officer’s non-judicial punishment on 010404 for VUMCJ Article 86, UA (6 specs); VUCMJ Article 92, Orders violation.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
010907:  Applicant on unauthorized absence over liberty as of 0600, 010907.
010907:  Applicant surrendered on board STRKFITRON EIGHT THREE at 0800 on 010907 (2 hours).
011001:  UA from STRKFITRON EIGHT THREE at NAS Oceana, Oceana, VA at 0600 on 011001.
011002:  Applicant surrendered on board STRKFITRON EIGHT THREE at NAS Oceana, Oceana, VA at 0615 on 011002 (1 day).

011009:  UA from STRKFITRON EIGHT THREE at NAS Oceana, Oceana, VA at 0615 on 011009.
011025:  Applicant surrendered on board STRKFITRON EIGHT THREE at NAS Oceana, Oceana, VA at 1230 on 011029 (16 days).

011114:  NJP for violation of UCMJ, Article 86 (3 specs): Absent from unit.
         Specification 1: Absent from unit, on or about 0600, 011001 until on or about 0615, 011002.
         Specification 2: Absent from unit, on or about 0165, 011009 until on or about 011025.
 Specification 3: Absent from unit, on or about 0630, 011029 until on or about 0830, 011029
Violation of UCMJ, Article 92: Failure to obey a written order, to wit: STRKFITRON EIGHT THREE Instruction 1601.1T, on or about 010930, fail to obey the same by not remaining at his recall on his duty day. Failure to obey other lawful order, issued by YNC S_, not to leave the immediate area without a request chit, fail to obey the same by leaving the immediate area without a request chit on or about 010930.
          Award: Forfeiture of $521 per month for 2 months, restriction for 60 days, reduction to E-1. No indication of appeal in the record.

011203:  UA from STRKFITRON EIGHT THREE at NAS Oceana, Oceana, VA.
011228:  Civil Conviction: New Glasgow Provincial Court, in the county of PICTOU of Nova Scotia on or about 011218 for unlawfully having in his possession a 1996 Ford Thunderbird, Vehicle # 1FALP52WSTH131661 of a value of exceeding five thousand dollars, knowing that same has obtained by the commission in Canada of an offense punishable by indictment contrary to section 354(L)A) of the criminal code..
 Sentence: Probation order issued for a period of 12 months effective 2002/12/28, to perform 60 hours of community service within nine months.
020409:  Applicant held IHCA, at Virginia Beach City Jail, Virginia Beach on charges of Grand Theft Auto.

020412:  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 and misconduct civilian conviction.

 020415:  Report of Return of Deserter. Applicant apprehended by border patrol in Halifax, Canada on 020409 and turned over to the Navy Absentee Collection Unit in Kallis, Maine. Returned to military control 020409 at Naval Air Station Oceana, Virginia Beach, VA.

020417:  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.
020523:  Applicant convicted for wrongful/unauthorized use of a motor vehicle in Virginia Beach, Virginia.
 Sentence: 12 months in jail (all but 75 days suspended for a period of 12 months).

 020524:  Applicant returned to military control.
020524:  Commander, Strike-Fighter Wing, U.S. Atlantic Fleet recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and a civilian conviction. Commanding Officer’s comments: “Airman Recruit A_ (Applicant) is assigned to Strike-Fighter Squadron EIGHT THREE, currently preparing for deployment on board the USS GEORGE WASHINGTON (CVN-73). Airman Recruit A_ has shown a total disregard for his squadron and the United States Navy. His continued misconduct shows that he is unable to comply with the rules and regulations of the Naval service or the behavior that is expected of him as a service member. Therefore, I strongly recommend that he be separated from the Naval service with an Other Than Honorable Discharge.”

020529:  GCMCA, COMNAVAIRLANT NORFOLK, VA directed the Applicant's discharge with under other than honorable conditions by reason of misconduct due to civil conviction.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20020605 by reason of misconduct due to a civil conviction (A and B) 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 (C and D).

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. The Applicant’s service was marred by 1 retention warning, 2 nonjudicial punishment proceedings for violations of Articles 86 (9 specs) and 92 of the UCMJ, an unauthorized absence of 171 days, and 2 civil convictions for wrongful/unauthorized use/possession of an automobile. 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 and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

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 33 effective
9 Jul 01 until 21 Aug 02, Article 1910-144 (previously 3630610), Separation by Reason of Misconduct - Civilian Conviction.

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, Article 92 – failure to obey general order, and Article 121 - larceny.

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


BOARD MEMBERS RECORD OF VOTE


 ______________________________________________________________________________
 NAME                       CHARACTER OF SERVICE     REASON FOR DISCHARGE
T. B. GALVIN, COL, USMC                    NO CHANGE                 NO CHANGE
Presiding Officer

A. E. KOLKMEYER, LTCOL, USMC     NO CHANGE        NO CHANGE
Member

B. A. RUSSELL, CDR, USN                    NO CHANGE        NO CHANGE
Member

D. C. EBY, LCDR, USN                       NO CHANGE        NO CHANGE
Member

S. F. HALL, CDR, USN                       NO CHANGE        NO CHANGE
Recorder


Recorder’s Signature:_____________________________________________


Presiding Officer’s Signature:_______________________________________

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