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

 ex-AMHAA, USN
Docket No. ND99-00710

Applicant’s Request

The application for discharge review, received 990503, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a personal appearance discharge review.  The applicant listed the American Legion as his representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000207.  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 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  (EQUITY ISSUE) As evidenced by the supporting documentation of record, this former member opines that family problems sufficiently mitigated his misconduct of record to warrant upgrade of his discharge to General (Under Honorable Conditions).

2.  (EQUITY ISSUE) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

Documentation

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

Copy of DD Form 214
Letter from Member of Congress to applicant dated June 29, 1998
Letter to Member of Congress dated June 18, 1998
Statement from applicant
Copy of Evaluation Report and Counseling record for 11Jul96 to 15Jan97
Letter from applicant to Madison County Superior Court 2
Letter from applicant to Madison County Superior Court II dated 9 April 1997
Copy of Notice of Hearing dated 17 June 1997
Copy of Summons dated 20 March 1997
Copy of Petition Alleging Child(ren) in need of services
Copy of Dispositional Order dated 6 May 1997
Copy of Notice of Hearing dated 27 January 1998
Copy of progress report dated December 23, 1997
Copy of case plan (needs/assessment/service delivery for child/family)
Copy of case plan (needs/assessment/service delivery for child/family)
Copy of Juvenile Notice dated March 6, 1997
Copy of Notice of Hearing dated 17 June 1997
Copy of Juvenile Notice dated May 19, 1998 (2 copies)
Copy of Notice of Hearing dated 27 January 1998
Copy of Progress report dated 23 December 1997
Copy of case plan (needs/assessment/service delivery for child/family)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	951221 - 960219	COG

Period of Service Under Review:

Date of Enlistment:  960220		Date of Discharge:  971219

Length of Service (years, months, days):

	Active:    01  10  00
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  8 GED		AFQT:  52

Highest Rate:  AMHAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)	Behavior:  3.00 (1)		OTA:  2.83*

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  39 

*Marks found submitted with supporting documents from applicant

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630605.

Chronological Listing of Significant Service Events:

970415:	Retention Warning: Advised of deficiency (Failure to obey order or regulation.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

970513:	Retention Warning: Advised of deficiency (Due to your inability to manage your personnel affairs, you have become an excess administration burden to your chain of command and to the Department of the Navy.  Continued inability on your part will further add to the administrative burden already placed upon the command and will negatively impact your naval career), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

971106:	Applicant declared a deserter.  Unauthorized absence since 1445, 6Oct97.

971120:	NJP for violation of UCMJ, Article 92: Failure to obey an order or regulation on 21Jun97, violation of UCMJ Article 86 (2 specs): Failure to go at the time prescribed to his appointed place of duty, 1445, 6Oct97 and unauthorized absence 1445, 6Oct97 to 0930, 15Nov97 (39 days/surrendered), violation of UCMJ Article 85: Deserter 1445, 6Oct97 to 0930, 15Nov90.
	Award:  Forfeiture of $505 per month for 2 months, restriction and extra duty for 45 days, reduction to AMHAA and oral reprimand.  No indication of appeal in the record.

971204:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and the commission of a serious offense.

971204:  	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.

971208:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and the commission of a serious offense. 

971212:	Commander, Naval Base, Jacksonville, FL directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 971219 under other than honorable conditions for misconduct due to commission of a serious offense (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

In response to the applicant’s issue 1, the Board fails to understand why it was necessary to absent himself from his place of duty for 39 days and be declared a deserter.  Although he may feel justified to have left to take care of his personal problems, the Board could not find any documentation that required him to be away from his job for such an extended period of time.  In addition there is no evidence in the record to show that the applicant made any attempt to request assistance from his command or request a hardship discharge.  No relief will be granted on the basis of this issue.

There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service.  However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D).  Those factors include, but are not limited to, the following:  evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided any documentation of good character and conduct.  Therefore no relief will be granted.  The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 
03 Oct 96 until 971212, Article 3630605, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 86, for unauthorized absence for a period in excess of 30 days and if adjudged at a Special or General Court Martial

C.  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.  

D.  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.

E.  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 Street SE Rm 309
		Washington, D.C.  20374-5023