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NAVY | DRB | 2005_Navy | ND0501528
Original file (ND0501528.rtf) Auto-classification: Denied


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

ex-AA, USN
Docket No. ND05-01528

Applicant’s Request
The application for discharge review was received on 20050913. 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 20060621. 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:

“I was under a tremendous amount pressure due to family matters at home. I was young and got bad advice about how to handle my situation.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Service 2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19981214 – 19990103      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19990104             Date of Discharge: 20000225

 Length of Service (years, months, days):

         Active: 01 01 22 (Does not include lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 134 days
         Confinement:              None

 Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 76

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 0.0 (1)     Behavior: 2.0 (1)        OTA: 2. 0

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): None











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

UNDER OTHER THAN HONORABLE CONDITIONS/ MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605). [Note BUPERSINST 1900.8 list the authority as 3630600 instead of 3630605]
Chronological Listing of Significant Service Events :


990430:  Retention Warning: Advised of deficiency (Violation of UCMJ, Articles 86, absence from unit, 990406/0615-0815, 990409/0720-0753, and 990429/0720-0939.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 990920:  Applicant to unauthorized absence at 0550 on 990920.

 000202:  Applicant from unauthorized absence at 2210 on 000202 (134 days/surrendered).

 000208:  NJP for violation of UCMJ, Article 86: Unauthorized Absence
 Award: Forfeiture of $563.00 pay per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
000208:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service is under other than honorable conditions by reason of misconduct due to commission of a serious offense.

000208:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.
000216:  Commanding Officer, Naval Air Technical Training Center, recommended to Chief of Naval Education and Training that the Applicant be discharged under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by Commanding Officer’s NJP on 8 February 2000 for violation of Article 86 of the UCMJ 1 specification of unauthorized absence in excess of 30 days. Commanding Officer’s comments: “Airman Recruit T_ (Applicant) received nonjudicial punishment for unauthorized absence in excess of 30 days (total days 134). In my opinion, he has no potential for further useful naval service; therefore, I recommend separation from the naval service with a discharge under Other Than Honorable conditions by reason of misconduct.”

000217:  Chief of Naval Education and Training, authorized the Commanding Officer, Naval Air Technical Training Center that the Applicant will be discharged under other than honorable conditions by reason of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20000225 by reason of misconduct due to commission of serious offense - absent without leave - 30 days or more (A and B) with a service characterization 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).

The Applicant requests an upgrade of his discharge characterization to General (Under Honorable Conditions) . 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. A retention warning and one nonjudicial punishment proceeding for a violation of Article 86 (absence without leave for 134 days) of the UCMJ marred the Applicant’s service. The NDRB advises the Applicant that certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline. A v iolation of Article 86 is considered a serious offense and typically warrants a punitive discharge if adjudged at a special or general court-martial. 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 states “I was under a tremendous amount pressure due to family matters at home. I was young and got bad advice about how to handle my situation.” While he may feel that his family issues were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief 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. As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider. Relief denied.
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(absence without leave for more than 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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