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NAVY | DRB | 2006_Navy | ND0600379
Original file (ND0600379.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-SHSR, USN
Docket No. ND06-00379

Applicant ’s Request
The application for discharge review was received on 20060110 . 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 20061109 . 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 General (Under 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 would like to have an Honorable Discharge I deserve it because I was an excellent sailor I had 4.0 evals. I ran into a daycare problem & had no help. ”
Documentation
In addition to the service and medical record, the following additional documentation, submitted by the Applicant , was considered:
Applicant ’s unofficial student record from University of Phoenix , undated
L tr from M_ L_ P_, dtd December 1, 200 X (year unreadable)
Ltr from T_ J_, dtd December 1, 2005
 Ltr from C_ H_, dtd December 1, 200 X (year unreadable)
Ltr from S_ J_, dtd December 1, 200 X (year unreadable)
Ltr from E_ P_, dtd December 1, 200 X (year unreadable)
Evaluation Report for period from November 8, 2002 to June 15, 2003
 Evaluation Report for period from June 16, 2003 to June 16, 2004
Evaluation Report for period from June 6, 2001 to February 28, 2002
 Evaluation Report for period from June 14, 2002 to November 7, 2002
Applicant ’s DD Form 214 (Member 1)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20001222 - 20010220       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 20010221              Date of Discharge: 20050209

Length of Service (years, months, days):

          Active: 03 11 19 (Does not exclude lost time)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 6 5
         Confinement:              None

Age at Entry: 18
Years Contracted: 4 ( 12 -month extension)

Education Level: 12                                 AFQT: 38

Highest Rate: SH 3

 Final Enlisted Performance Evaluation Averages (number of marks) * :

 Performance: 4.3 ( 4 )                        Behavior: 3.8 ( 4 )                  OTA: 3.82

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Good Conduct, N ational Defense Service Medal, Global War on Terrorism Service Medal

*Averages include evaluations provided by Applicant but not contained in the record.


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

GENERAL (UNDER HONORABLE CONDITIONS) /MISCONDUCT, authority: MILPERSMAN, Article 1910-142 (formerly 3630605).
Chronological Listing of Significant Service Events :

001222 :  Pre-service waiver for non - m inor misdemeanor granted.

010918:  Applicant to unauthorized absence at 0700 on 010918.

 010919:  Applicant from unauthorized absence at 0800 on 010919 .

040905:  Applicant to unauthorized absence at 0630, 040905.

040909:  Applicant missed ship’s movement.

 040922   Applicant missed ship’s movement.

 041005:  Applicant declared a deserter.

 041029:  Applicant missed ship’s movement.

 041109:  Applicant from unauthorized absence on 041109.

041118 :  Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article s 86 and 87.

041202 :  Charges referred to summary court-martial.

041207 :  Summary Court-Martial.
          C harge I: Article 86:
         Specification : Unauthori zed absence from on or about 04090 5 to on or abou t 041109: Plea: Guilty. Finding: Guilty.
         C harge II: Article 87:
         Specification 1: Did on 040909, through design, miss movement of the USS NIMITZ, with which she was required in the course of duty to move. Plea: Not Guilty. Finding: Not Gui l ty .
         Specificat i on 2 : Did on 040922, t hrough design, miss moveme nt of the USS NIMITZ, with which she was required in the course of duty to move. Plea: Not Guilty. Finding: Not Guilty.
         S pec ification 3 : Did on 041003, though design, miss movement of the USS NIMITZ, with which she was required in the course of duty to move. Plea: Not Guilty. Finding: Withdrawn.
         Specification 4: Did on 041029, t hrough des i gn, miss movement of the USS NIMIT Z with which she was requir e d in the c ourse of duty to move . P l ea : Not Guilty . Finding : Not G uilty .
         Sentence : Forfeiture of $828.00 per month for 1 month and reduction to E-1 .
          CA action 041223 : Sentence approved and ordered executed .

041216:  Applicant found physically qualified for separation.

 050111 :  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct due to commission of a serious offense.

050111 :  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.

050122:  Review of Summary Court-Martial, in accordance with Article 64(a) UCMJ and Section 0153(a) JAGMAN , found the court had jurisdiction over the accused and the offenses. The charges an each specification stat e an offense and the sentence was within the limits prescribed by law. However, the forfeiture was incorrectly stated on the record of trial. Accordingly , the forfeiture portion of the sentence in this case is changed to $848.00.
050324 :  Commanding Officer, USS NIMITZ (CVN 68) , reported to Commander, Navy Personnel Command (PERS 832), directing the Applicant ’s general (under honorable conditions) discharge by reason of misconduct due to commission of a serious offense . Commanding Officer’s comments: “ SHSR G_( Applicant ) is no longer fit for Naval Service. At Summary Court-Martial held on 041207, she was convicted and awarded punishment for unauthorized absence totaling 64 days. SHSR G_ stated that she was unable to find and afford daycare for her 17 month old son. She clearly has no regard for the Navy’s rules and regulations. Accordingly, I have separated SHSR G_ from the Navy and characterized her service as General under Honorable Conditions. ”


PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20050209 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of general (under 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 contends that her discharge is inequitable because she was an “excellent Sailor with 4.0 Evals.” Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. 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 or general 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 summary court-martial conviction for a violation of Article 86 of the UCMJ for a 64-day period of unauthorized absence. The Applicant’s 64-day unauthorized absence is the commission of a serious offense, punishable by punitive discharge if awarded upon conviction as part of the sentence at a special or general court-martial. The Applicant’s record also shows the Applicant had a 1-day period of unauthorized absence which was not adjudicated. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy and falls far short of that required for an upgrade of her characterization of service. Relief is not warranted.

The Applicant implies that her unauthorized absence was the result of her inability to procure childcare. While she may feel that her personal responsibilities were the underlying cause of her misconduct, the record clearly reflects her willful misconduct and demonstrated she was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for her conduct or that she should not be held accountable for her 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), re-issued October 2002, effective 22 Aug 02 until 25 April 2005, 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 .
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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