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NAVY | DRB | 2006_Navy | ND0600075
Original file (ND0600075.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-AOAR, USN
Docket No. ND06-00075

Applicant’s Request
The application for discharge review was received on 20051020. 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 20060721. After a thorough review of the 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 character 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:

“I am requesting an upgrade to ensure my future as a father to my 8 month old son and as a husband. I want to be able to gain entry in a career that is best for me and not have an “Other Than Honorable Discharge” get in the way of my future. I realize I made a huge mistake and if I could take it back I would. I joined the Navy in the year 2000 and in 2001 I was reprimanded for my first offense and served my punishment. I was clean and hard working up until September 2003 where I made another mistake. Realizing the implications I tried to stay in the Navy. I believe that my punishment was fair and I lost more than my dignity. I lost a $30.000 scholarship for my education. Moreover, I was an E-3 before I got into trouble again and would have been a 3rd class Petty Officer if I would have kept on track with my goals. I deeply regret the wrong things that I have done while enlisted in the U.S. Navy. I ask for the Navy’s forgiveness and plead for a change in discharge from “Other Than Honorable” to “Honorable”. Thank you.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Letter of Commendation for service from March to June 2003
Applicant’s DD Form 214 (Member 1 copy)
Evaluation Report & Counseling Record for period ending July 15, 2003 (2 pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20000531 – 20000801               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20000802             Date of Discharge: 20031105

 Length of Service (years, months, days):

         Active: 03 00 24 (excludes lost time)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 70 days
         Confinement:              Unknown*

 Age at Entry: 17 (Parental Consent)

 Years Contracted: 4

Education Level: 12                                 AFQT: 50

 Highest Rate: AOAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 5.0 (1)              Behavior: 4.0 (1)                 OTA: 3.83* *

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Sea Service Deployment Ribbon.
* Applicant sentenced to cumulative total 40 days confinement at summary courts martial
** Report provided by Applicant


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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

010409:  Applicant to unauthorized absence.

010412:  Applicant from unauthorized absence. (3 days)

010416:  Applicant to unauthorized absence.

010418:  Applicant from unauthorized absence. (2 days)

010716:  Applicant to unauthorized absence. Applicant missed ship’s movement.

010813:  Applicant missed ship’s movement.

010819:  Applicant from unauthorized absence. (34 days)

010821:  Applicant to unauthorized absence. Applicant missed ship’s movement.

010827:  Applicant missed ship’s movement.

010919:  Applicant from unauthorized absence. (29 days).

011110:  Summary Court-Martial.
         Charge: violation of the UCMJ, Article 86: (4 specs), absent from unit on or about 010821 until 010919; 010716 until 010819; 010416 until 010418; and 010409 until 010412. Violation of the UCMJ, Article 87 (4 specs), Missing movement through design on or about 010716 and missing movement through neglect on 010813, 010821 and 010827.
          Sentence: Forfeiture of $728.00 pay per month for 1 month, reduced to E-1, confinement for 10 days.
          CA action: Not found in record.

011110:  Applicant to confinement.

020117:  Retention Warning: Advised of deficiency (Summary Court Martial for a violation of Article 86, UCMJ, 4 specifications of unauthorized absence from your organization, and Article 87, 4 specifications of missing ship’s movement.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030918:  Applicant to unauthorized absence.

030919:  Applicant missed ship’s movement.

030920:  Applicant from unauthorized absence. (2 days)

031006:  Summary Court-Martial.
         Charge: violation of the UCMJ, Article 86: Unauthorized absence from 030918 to 030920.
         Violation of the UCMJ, Article 87: Missing movement on 030919.
         Sentence: Forfeiture of $600.00 pay per month for 1 month, reduced to E-1, confinement for 30 days.
          CA action: Not found in record.

031011:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct due to pattern of misconduct and misconduct due to commission of a serious offense.

031011:  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.
031023:  Commanding Officer, USS NIMITZ (CVN 68) recommended discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct and misconduct due to commission of a serious offense. Commanding Officer’s comments: “AOAR B_ (Applicant) has developed an ongoing pattern of misconduct. His episodes of misconduct include two Summary Courts Martial and numerous periods of unauthorized absence, to include missing several ship’s movement. As evidenced by AOART B_’s (Applicant) conscious decision to miss the sailing of USS NIMITIZ from a foreign port. AOAR B_ (Applicant) has no regard for the Navy’s policies or regulations. He clearly has no potential for further useful service. Accordingly, I recommend he be separated with a characterization of Other Than Honorable Conditions”.

031027:  GCMCA, Commander, Cruiser-Destroyer Group FIVE, authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to 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 20031105 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of under other than honorable conditions. After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D). The Board presumed regularity in the conduct of governmental affairs (E).

 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 a retention warning and two summary courts martial convictions for violations of Articles 86 and 87 of the UCMJ. The Applicant went to unauthorized absence on five occasions and missed ship’s movement five times. One of the Applicant’s periods of unauthorized absence was 34 days in duration. Violations of Article 86 for unauthorized absence in excess of 30 days and violations of Article 87, missing movement, are serious offenses, for which punitive discharges are authorized upon conviction by 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of “ensuring a future” or enhancing employment/educational opportunities. Relief is not warranted.

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 any 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. 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), re-issued October 2002, effective 22 Aug 02 until Present, 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 for more than 30 days or Article 87, missing movement.

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 .

E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .

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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