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

 ex-ENFA, USN
Docket No. ND00-00750

Applicant’s Request

The application for discharge review, received 000530, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a personal appearance hearing discharge review before a traveling panel.  The applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) did not travel and all personal appearance hearings are held in the Washington DC Area.  NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 001214.  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 (verbatim)

1.  I wish only to state that the problem I had which led to my discharge were never intentional misconduct and were the result o either miscommunication or circumstances beyond my control.  The first involving a missed watch was because of being given erroneous information by another person.  The second involving a missed flight to my next duty station was a result of having to spend all of my leave and travel pay for car repairs after which I was left with no money even to get to my duty station.  I reported to my last duty station at great lakes so I would not be considered purposely awol.  If you will check my personnel file and submitted citation, award, and letters of appreciation, it will be shown that I was a good sailor.  I know my indiscretions called for disciplinary action, but I feel that an other than honorable discharge was to harsh a punishment.

Documentation

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

Copy of DD Form 214
Letter from Applicant
Employment Reference Letters (3)
Copy of Good Conduct Award
Copy of Letter of Appreciation
Copies of Letters of Commendation (4)
Copy of Certificate of Completion
Copy of Enlisted Performance Evaluation Report
Copy of Enlisted Performance Record

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	900831 - 910811	COG

Period of Service Under Review:

Date of Enlistment:  910812		Date of Discharge:  960503

Length of Service (years, months, days):

	Active:    04  07  10
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (4 months extension)

Education Level:  12			AFQT:  40

Highest Rate:  EN3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.95 (4)	Behavior:  3.90 (4)		OTA:  3.95

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM, SASM (2ND), SSDR, NDSM 

Days of Unauthorized Absence:  44 

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:

951020:	NJP for violation of UCMJ, Article 86: Failed to go at the time prescribed to his appointed place of duty on or about 2345, 951002, to wit: Duty Section Watch in BLDG 177.
	Award:  Forfeiture of $636 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3 (suspended for 4 months).  No indication of appeal in the record.

951120:	Reduction to E-3 suspended for 4 months at CO'S NJP 951020 vacated due to continued misconduct.

960129:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 960126 having been an unauthorized absentee since 1900, 951227 from USS WASP (LHD-1).

960222:	NJP for violation of UCMJ, Article 86: UA from 1730, 951227 until 0945, 960209 [44days/S].
	Award:  Forfeiture of $490.35 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

960314:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

960314:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

960314:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. 

960417:	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 960503 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, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E).  However, 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.  No such error or injustice is evident in the applicant’s service record.   The Board could find no reason why the applicant was on unauthorized absence for 44 days because he had missed a flight.  It does not seem that the applicant made much effort to report to his duty station in a timely manner. 

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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.  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, is considered.  The applicant provided three employment reference letters as documentation of his post-service.  The applicant's efforts need to be more encompassing than those provided.  The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service and certification of non-involvement with civil authorities in order for consideration for clemency based on post-service conduct.  At this time the applicant has not provided sufficient documentation of good character and conduct.  Therefore no relief will be granted.  He 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.  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, 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