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

 ex-EMFA, USN
Docket No. ND99-01238

Applicant’s Request

The application for discharge review, received 990928, 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 000616.  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.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I was stationed on the USS KITTY HAWK in DEC of 96.  I found out from my mother that my grandfather was dying of cancer.  I requested leave an was turned down.  I told them that I was close to him an wanted to see him before he died.  They did not care, they still said no.  Well I decided in my own heart, an I am not sorry for my choice, that I had to go an see him one more time before he left us.  I was U/A  for a few weeks, then I came back to the ship, I had to go see the captain (M____) an he gave me an other than honorable discharge, they took away my G I Bill, I needed to do to college.  I believe that was too harsh of a punishment.  I was never in any trouble before that.  I am asking that you upgrade my discharge to Honorable.  I served my country for almost 3 years it has been almost 3 years.  I don't believe you should haunt me with this for the rest of my life.
2.  I also submit to you another issue, that at the time all this was going on with my grandfather dying I was going through a divorce an was stressed when I was out at sea.  I am now trying to get my life in order with this request for a discharge upgrade.

Documentation

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

Copies of DD Form 214 (2).

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	920629 - 930607	COG

Period of Service Under Review:

Date of Enlistment:  930608		Date of Discharge:  960418

Length of Service (years, months, days):

	Active:    02  08  11
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  58

Highest Rate:  EMFN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (2)	Behavior:  3.50 (2)		OTA:  3.60

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, NAVY"E"RIBBON, MUC 

Days of Unauthorized Absence:  57

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:

960123:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 960115 having been an unauthorized absentee since 0730, 951214 from USS KITTY HAWK (CV-63).

960211:	Report of Return of Deserter.  Applicant surrender onboard USS KITTY HAWK at NASNI SAN DIEGO CA at 1245, 960209. Retained onboard for disciplinary action.

960215:	NJP for violation of UCMJ, Article 86: UA from duty section from 951214 to 960209 (57days/S), violation of UCMJ Article 87: Missed ship's movement on 960129.
	Award:  Forfeiture of $490.00 per month for 2 month, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

960220:	Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense.

960223:  	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 submit statement on own behalf either verbally or in writing, and to obtain copies of the documents used to support the basis for the separation.

960223:	Applicant's statements " To Chief of Naval Personnel (PERS 83). 1. As you can see I am being recommended for an other than honorable discharge from the U.S Navy.  I am asking that I be considered for a  general discharge for reasons being that I have served in the navy honorably for 2 years and 9 months without prior non-judicial punishment.  My wife has committed her 2nd criminal offense and is on probation.  I have filed for divorce and am trying to declare her an unfit mother and take custody of my daughter.  I was told by Captain M____ and the legal officer aboard USS KITTY HAWK than an other than honorable discharge from the navy may not hold much weight in front of a judge and could keep me from gaining custody of my daughter.  I am asking that you please consider me for a general discharge so that I may hold my head up high in front of the judge and be appointed custody of my daughter. Thank you".
     
960226:	Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense.  Commanding officer’s comments (verbatim):  I strongly recommend that EMFA (Applicant) be administratively discharged from the Naval service by reason of his 59 day unauthorized absence and missing ship’s movement; and that the characterization of his discharge be under Other Than Honorable conditions.  EMFN (Applicant) was an administrative burden to his division and to this command long before the instant misconduct.  EMFA (Applicant’s) enlisted performance evaluations described him as a below average worker and technician who occasionally displayed immature behavior and had not demonstrated any initiative or any willing to accept responsibility.  EMFN (Applicant) did not seek assistance from his chain of command prior to beginning his unauthorized absence, nor did he make any attempt to contact us while he was gone.  It was not until his surrender that he indicated any personal problems regarding his wife and child – a child who is not even on his page 2.  Separation, characterized under Other Than Honorable conditions, is clearly warranted for this individual. 

960320:	BUPERS 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 960418 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 the applicant’s issue 1, the Board determined that this issue is without merit.  The applicant states he went UA because his grandfather was dying of cancer and his leave was disapproved by his chain of command.  Additionally, he wants his G.I. bill benefits to attend college.  The applicant went UA for 57 days and missed ship’s movement.  In the Commanding Officer’s letter to BUPERS, the C.O. states, the applicant never informed his chain of command that he had personal problems and needed assistance but chose to go UA and said nothing until he surrendered.  The applicant’s military service was not Honorable based on his deserter status.  The characterization of his service as Other Than Honorable was proper and equitable.  The applicant served less than 36 months, therefore, he is not qualified for G.I. bill education benefits and all funds he contributed to the G.I. bill are forfeited.  Relief denied.

In the applicant’s issue 2, the Board determined this issue is without merit.  The applicant claims he was going through a divorce and was stressed while at sea.  There are avenues an individual can use, if subjected to external stresses, without going UA.  There are no indications the applicant attempted to use any other avenue besides deserting.  He made a conscious decision to desert and missed ship’s movement and is accountable for his actions.  The discharge was proper and equitable.  Relief denied.

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 – COMMISSION OF A SERIOUS OFFENSE.

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 86:  Unauthorized absence, for a period in excess of 30 days, and for Article 87: Missing movement, 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 view DoD Directive 1332.28 and other Decisional Documents by going online at "afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023