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

 ex-AN, USN
Docket No. ND03-00512

Applicant’s Request

The application for discharge review was received on 20030210.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant listed Disabled American Veterans as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040114.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 3630650.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  On December 3, 1994 I was involved in an automobile accident, which nearly cut off my leg.  I was on my way back home from Norfolk, Virginia.  I had been UA for a few months, for several reasons including not getting in my “A” school because I would have to be transferred to a different command.  I was also upset for not being allowed to return home before my little cousin died of Leukemia at the age of 16, regardless of several Red Cross messages stating his hospice care and requesting my presence.  I returned to Norfolk after being UA to find that my ship was on a workup for two weeks.  I decided to return home and wait for the ship to return.  I stayed in Farmville, Virginia for a couple of days and set back towards Knoxville, Tennessee.  I fell asleep and ran off the road.  I was taken to Roanoke Memorial Hospital and remained there for two weeks until I was picked up by Navy personnel and transported to Portsmouth Naval Hospital.  I was at Portsmouth until February and I was then transferred to medical holding.  I was advised by Navy counselors not to appeal at court martial and to take the “Other than Honorable” discharge.  I took the advice and was discharged in June of 1995.  I was discharged with an external fixture still in my leg and all of my medical bills from Roanoke were my responsibility.  While I was UA, I was accompanied by T_ S_, who was also assigned to the Roosevelt.  He was actually in the accident with me, but was not injured.  After I returned he remained UA.  He on the other hand, was able to remain in the Navy, even after being gone longer.  After my discharge I was faced with over $100,00 in medical bills.  I still had an external fixture in my leg and was unable to work, so in 1995, at the age of 22, I had to file Bankruptcy.  I have undergone several operations since and I am now doing well.  I have learned a lot over the past 7 or 8 years and I take responsibility for my actions.  I feel like I have more than paid my dues since these mistakes.  I am asking you to please review my case and consider upgrading my discharge to Honorable.”

Additional issues submitted by Applicant’s counsel/representative (DISABLED AMERICAN VETERANS): 

2.  “Based on the contentions of the Petitioner, as well as an overview of the available records, it is requested the Board complies with the petitioner’s request that his discharge be upgraded.  It is very important that the Board consider all contributory factors surrounding this case (see attached statements), coupled with the impetuosity of his youth, and in that respect, we humbly request, any and all reasonable doubt that has occurred be resolved in favor of the petitioner and corrective action be taken to upgrade his discharge.  These issues do not supercede any previous issues.”

Documentation

In addition to the service record, NO DISCHARGE PACKAGE WAS AVAILABLE, the following additional documentation, submitted by the Applicant, was considered:

Copies of DD Form 214 (3)
Letter from Applicant (2 pages)
Letter from Applicant
Copies of Enlisted Performance Evaluation Reports (4 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	920824 - 920927	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  920928		Date of Discharge:  950627

Length of Service (years, months, days):

	Active:    02  03  20
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  11			AFQT:  84

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (1)	Behavior:  3.80 (1)		OTA:  3.80

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC, NAVY”E”, NDSM, SASM (w/b*), SSDR

Days of Unauthorized Absence:  165

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority:  NAVMILPERSMAN, Article 3630650.

Chronological Listing of Significant Service Events:

940523:	Retention Warning:  Advised of deficiency (unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

940523:	NJP for violation of UCMJ, Article 86: (4 Specifications), Unauthorized absences, Spec 1: From 0700-1648, 940407; Spec 2: From 0700-1300, 940413; Spec 3: From 0715, 940501 to 0620, 940502; Spec 4: From 0700-0750, 940504.
	Award:  Forfeiture of $100.00 pay per month for 2 months, restriction and extra duty for 14 days.  No indication of appeal in the record.

940712:	AWOL from USS THEODORE ROOSEVELT (CVN-71).

940719:	Missed ship movement.

940812:	Declared a deserter.

941102:	Missed ship movement.

950208:	Report of Return of Deserter.  Taken to civilian hospital in Roanoke, VA on 941203 due to car wreck.  Returned to military control 941222 (1530) at NAVMEDCEN Portsmouth, VA.  Retained for disciplinary action.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950627 under other than honorable conditions in lieu of a trial by court-martial (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).

Issues 1 and 2.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor.  The Applicant’s service was marred by one non-judicial punishment, an extended period of unauthorized absence and missing ship’s movement that resulted in his request for separation under other than honorable conditions in lieu of a trial by court-martial.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident during the Applicant’s enlistment.  Additionally, 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 civilian life, subsequent to leaving the service.  Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge.  Representation at a personal appearance hearing is recommended but not required.  

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 
22 Jul 94 until 2 Oct 96, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR SEPARATION IN LIEU OF TRIAL BY COURT‑MARTIAL. 

B.  A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article 86, unauthorized absence for a period more than 30 days, upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-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