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

 ex-OSSR, USN
Docket No. ND99-00436

Applicant’s Request

The application for discharge review, received 990208, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 991206.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

The NDRB did note an administrative error on the original DD Form 214.  Block 12c Net Active Service This Period should read: “01 07 10” vice “01 05 24”.  The original DD Form 214 should be corrected or reissued as appropriate. 

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I would like my discharge upgraded because I would like to enlist in the Maine Air National Guards.  I was young and immature when I commited my crime against the U.S. Navy.  I can't change what I've done, but I can try to rebuild my self honor and pride.

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

None

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:    None
	Inactive:  USNR (DEP)	941102 - 941219	COG

Period of Service Under Review:

Date of Enlistment:  941220		Date of Discharge:  960729

Length of Service (years, months, days):

	Active:    01  07  10
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  70

Highest Rate:  OSSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM w/Bronze Star, AFSM, NATO,
         NER

Days of Unauthorized Absence:  34

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

950723:	NJP for violation of UCMJ, Article 92: Drinking under age on 3Jul95.
	Award:  Forfeiture of $427 per month for 1 month, restriction and extra duty for 15 days.  No indication of appeal in the record. 

951210:	Retention Warning:  Advised of deficiency (Misconduct as evidenced by your nonjudicial punishment of 23 July 1995 for VUCMJ, Article 92, failure to obey a lawful general regulation.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

960624:	Applicant declared a deserter.  Unauthorized since 0600, 24May96.

960627:	Applicant from deserter status, 1200, 27Jun96 (S).

960703:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86.
	Specification: Unauthorized absence from 0600, 24May96 to 1200, 27Jun96 (34 days/surrendered).
	Finding:  to Charge I and the specification thereunder, guilty.
	Sentence:  Forfeiture of $281.00, confinement for 15 days, reduced to  E-1.
	CA action 960715: Sentence approved and ordered executed.
	
960719:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due a pattern of misconduct and misconduct due to commission of a serious offense as evidence by all punishments under the UCMJ in your current enlistment.

960719:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation 

960722:	Substance Abuse/Dependency Evaluation: Applicant not dependent on ETOH.  Comments: Incident occurred last year, eval should have been done then if concerned about ETOH.

960723:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense, (absent without leave, 30 days or more).  Commanding officer’s comments (verbatim): OSSR (applicant's) misconduct warrants separation.  His presence is detrimental to morale and good order and discipline on board AMERICA.  He has no potential for further military service.  I strongly recommend that OSSR (applicant) be separated immediately from the naval service under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.  Req discharge authorization soonest.

960725:	COMNAVAIRLANT Norfolk, VA directed the applicant's discharge under other than honorable conditions by reason of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 960729 under other than honorable conditions for misconduct due to absent without leave (30 days or more) (A).  The Board presumed regularity in the conduct of governmental affairs (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

The applicant wants his discharge upgraded so that he can enlist in the National Guard. To permit relief, an error or injustice must be found to have existed during the period of enlistment under review.  There was nothing in the records, nor did the applicant provide any documentation, to indicate there existed an error of fact, law, procedure, or discretion at the time of discharge.  There was no rights violation and no basis for relief.

The following is provided for the applicant’s edification. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E).  The applicant must be aware that 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB.  The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT. 

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		Washington Navy Yard
		720 Kennon St SE Rm 309
		Washington, D.C.  20374-5023