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

 ex-ABHAR, USN
Docket No. ND00-00647

Applicant’s Request

The application for discharge review, received 000425, requested that the characterization of service on the discharge be changed to entry level separation or uncharacterized.  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 001102.  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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  My discharge was improper because it was based on one isolated incident.  I admit I took the wrong action that cost me a stand strong career.  All I ask to be given a second chance to prove myself.  All I ask of you as a board of equal peers just to reconsider my re-code and to give me a second chance by upgrading it to a 3.

2.  I was young and immature at the time of the occurring incident, but with my future gone I have had a lot of time to prosper and to put my priority together.  I am a solider.  This is not my life being a civilian, plus I would like for my kids to look up at me instead of down.

3.  Please inform me of your decision at the address on front.  I am not a civilian I am solider and wants to serve and protect my country. 

Documentation

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

Letter from Applicant (2pgs)
Copies of message from America Red Cross (2)
Medical Document
Copy of Individual Completion Report
Copy of Final Qualification as Maintenance Person
Advancement Worksheet
ESO Performance Mark Average/Computation Sheet

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		None
	Inactive: USNR (DEP)	941130 - 950515	COG

Period of Service Under Review:

Date of Enlistment:  950516		Date of Discharge:  980325

Length of Service (years, months, days):

	Active:    02  03  04
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  31

Highest Rate:  ABHAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (3)	Behavior:  3.00 (3)		OTA:  3.16

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM 

Days of Unauthorized Absence:  205 

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

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

Chronological Listing of Significant Service Events:

950517:	Retention Warning:  Advised of deficiency, despite your fraudulent induction as evidenced by your failure to disclose required basic enlistment eligibility information (Marijuana 4x, 7/89-4/95; Unborn child not documented), advised of consequences of further deficiencies, and issued discharge warning. 

960909:	Counseling:  On 960906 you were UA from appointed place of duty from 1400 until 1530.

970708:	Pre-trial confinement 970708 to 970919.

970919:	Special Court Martial [trial date 970919]
	Charge I:  violation of the UCMJ, Article 86, (4) Specifications.
	Specification 1:  Unauthorized absence 970130 – 970224, [25 days/S]
	Specification 2:  Unauthorized absence 970311 - 970325, [14 days/S] Specification 3:  Unauthorized absence 970411 - 970415, [4 days/S] Specification 4:  Unauthorized absence 970423 - 970701, [70 days/S]; Charge II: violation of the UCMJ, Article 87: Missing Ship's Movement through neglect on 970428.
	Findings:  to Charge I and specifications 1 through 4 thereunder, guilty.  To Charge II and specification 1 thereunder, guilty.
	Sentence:  CHL for 50 days, forfeiture of $300.00 per month for 2 months, reduction to E-1.
	CA 971124:  Sentence approved and ordered executed.

971015:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

971020:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

971030:	Released from confinement and restored to full duty.

971211:	UA from 971211 to 980313 [92days/S].

980109:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

980116:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

980126:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 980123 having been an unauthorized absentee since 0730, 971211 from TPU NORVA.

980303:	Report of Return of Deserter.  Applicant surrendered onboard TPU NORVA at 0950, 980313. Returned to military control 980313 (0950).  Restored to full duty status 0950, 980313 at TPU NAVSTA NORVA.

980227:	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 980325 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 applicant implies that a permissive doctrine exists whereby one in the military is allowed a “single misdeed”.  The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record.  No such leniency exists in the military.  The applicant is responsible for his actions and must accept the consequences of his misdeeds.  The Board will not grant relief on the basis of this issue.  Additionally, the Board has no authority to change re-enlistment codes or make recommendations to permit re-entry into the Naval Service or any other of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to re-enlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment.

In response to the applicant’s issue 2, the Board found that the applicant’s age, education level, and test scores qualified him for enlistment.  While he may feel that his immaturity was a factor that contributed to his action, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions.

The applicant’s issue 3 is a non-decisional 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 18, effective 
12 Dec 97 until 29 March 2000, Article 1910-142  [formerly 3630605]. SEPARATION 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 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