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

ex-FA, USN
Docket No. ND01-00108

Applicant’s Request

The application for discharge review, received 001030, 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 010503.  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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I am writing this letter in high hopes of having my dd-214's upgraded from a General to an Honorable Discharge.  There were may personal incidents which took place at that time to cause me to make some unfortunate choices.  If you will allow me the time to explain. The starting point was in January of 1996.  The command I was stationed at in Norfolk, Virginia, was preparing for our Med Cruise, (6Mo.) deployment.  I had taken my family home to Toledo, Ohio for the holidays, due back on Monday at 0700 hrs.  Due to weather conditions that closed the east coast, made traveling impossible and illegal.  On Wednesday evening, I was able to get a flight out of Toledo, via Red Cross.  My wife and stepbrother drove down the following week arriving on Friday evening, leaving our 2 children in Toledo.  We had been getting all of our affairs in order, so that I may be able to leave and not have anything to worry about.  Our plans were that my wife was to stay in Toledo until I returned.  On Saturday evening, we received an emergency phone call from her parents, that they had taken our 3 mo. son, Jovan, to the emergency room.  After many phone calls back and forth, we were told that he was being admitted to the Intensive Care Unit, at Toledo Hospital, in Critical condition, for "Failure to Thrive." I went to my Divisional Chief Petty Officer and explained the situation.  I was told that he could not do anything without a message from Red Cross.  This message was received about 1/2 hr. later.  We had another discussion about me leaving on an emergency leave.  I was told that I would have to let him think about it. Finally, on Monday afternoon, I was granted a 3-day emergency leave.  Having to return by 2400 hrs on Thursday.  The reason being that our ship was due to leave the following morning.  On Thursday, my son remaining in critical condition, the Dr. in charge of my son, requested that my leave be extended.  This was done via Red Cross also.  However it was denied.  I did return to my ship as instructed by the designated time.  I left with the ship on Friday morning.  I received a letter from my wife a short time later the he had been released and was doing ok.  She also wrote that she was once again pregnant. On June 22, 1 received another Red Cross message that the unborn child we were expecting, was deceased.  I was granted a 2 week emergency leave for this.  The said child was delivered on June 27.  At the end of the 2 weeks, I had returned to the command.  Approximately 30 days later, I was not able to withstand being gone and trying to deal with my son's illness, and then the loss of a baby.  So at that point, I routed a request form to receive a hardship discharge, which normally takes 3 to 5 days to go up and down the chain of command.  Unfortunately, it took close to 30 days for the request to be returned to me.  At this point I had decided to go UA (unauthorized absence). At the time I had left, the command was scheduled to leave on a Monday for West Africa.  After I had went UA, the schedule for West Africa was moved ahead one day.  The command had no way to get in contact with me to inform me of the new departure date.  I had been UA a total of 26 days.

Once I learned of the change, I went to the base commanding officer and explained what had happened.  At that point, he had transferred me to a temporary personal unit, which I stayed at until the command had returned.  I therefore returned to the command and went to the Captains Mast.  At this time, I had received my punishment and was discharged with a General Discharge and the ability of not being able to re-enlist.  At this time, I am asking that my discharge be upgraded and that I would be able to re-enlist.  I would appreciate some form of action or response at your earliest convenience. Finally, I would like to take this time to Thank You for your time and consideration in the matter at hand.  If any further information is needed, please do not hesitate to ask.  I am willing to co-operate in anyway possible.

Thank You Very Much

Documentation

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

Copy of DD Form 214
One page from applicant's service record

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	930826 - 940627	COG

Period of Service Under Review:

Date of Enlistment:  940628		Date of Discharge:  961220

Length of Service (years, months, days):

	Active:    02  05  23
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  58

Highest Rate:  FN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.50 (2)	Behavior:  2.00 (2)		OTA:  2.34

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, NER, SSDR, AFSM

Days of Unauthorized Absence:  38 

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

950824:	Retention Warning:  Advised of deficiency (Unauthorized absence which resulted in violation of UCMJ Article 86.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
950911:	Applicant to unauthorized absence 0730, 11Sep95.

950918:	Applicant from unauthorized absence 0730, 18Sep95 (7 days/surrendered).

950920:	Applicant to unauthorized absence 0730, 20Sep95.

950925:	Applicant from unauthorized absence 0730, 25Sep95 (5 days/surrendered).

950928:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
	Award: Restriction for 30 days, extra duty for 45 days, reduction to FA.  Reduction suspended for 6 months.  No indication of appeal in the record.

950928:	Retention Warning:  Advised of deficiency (Unauthorized absence which resulted in violation of UCMJ Article 86.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

960828:	Applicant to unauthorized absence 0730, 28Aug96.

960823:	Applicant from unauthorized absence 0850, 23Sep96 (26 days/surrendered).

960926:	Applicant declared a deserter.

961121:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
	Award: Restriction and extra duty for 45 days, reduction to FA.  No indication of appeal in the record.

961209:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

961209:  	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.

961211:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct, due to misconduct.  Commanding officer’s comments (verbatim): Per references (a), and enclosures (3) through (5), FA (applicant) is highly recommended for administrative separation under General conditions as evidenced by his misconduct during his current enlistment.  Based on FA (applicant's) misconduct and desire to leave the Navy it is evident that future performance will be poor and not advantageous to good order & discipline or the mission of TORTUGA.  FA (applicant) does not express regret for his actions and feels he can best look after his own needs by leaving the Naval Service.  I recommend that FA (applicant) be administratively separated under General conditions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 961220 general (under honorable conditions) for misconduct due to commission of a serious offense (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’s issue (letter) describes circumstances of his discharge.  The Board found no impropriety or inequity in the discharge.  The Board found that a General, under honorable conditions, discharge accurately characterized the applicant’s service.  Relief is not warranted.

The NDRB is authorized to consider post-service factors in the re characterization of a discharge.  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 failed to provide any post service documentation for the Board’s consideration.

The applicant 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 – COMMISSION OF A SERIOUS OFFENSE.

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 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