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

 
ex-FR, USN
Docket No. ND04-00916

Applicant’s Request

The application for discharge review was received on 20040512.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests 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 20041103.  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/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1) “Mother’s illness.  My absences were due to the fact that my mother was ill and I needed to see her to take care of her.  I tried to get authorized leave but was uable to do so.  I needed to take care of my mother so I just left.  I regret causing the Navy problems.”

2) “Stress.  I was having stress on the job as a machinist mate.  This was caused by my anxiety and concern for my mother and it made my work difficult.”

Documentation

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

Job/character reference, dated February 25, 2004
Character reference from Reverend, Parochial Vicar of St. John the Evangelist RC Church, undated
Applicant’s DD Form 214
Applicant’s DD Form 215
Ten pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	010515 - 010522	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  010523		Date of Discharge:  030522

Length of Service (years, months, days):

	Active:    02  00  00 [Does not exclude lost time]
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  33

Highest Rate:  FA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.00 (1)	Behavior:  1.00 (1)		OTA:  1.00

Military Decorations:  None

Unit/Campaign/Service Awards:  BER

Days of Unauthorized Absence:  133

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:

020926:	Applicant to unauthorized absence.

021021:	Applicant from unauthorized absence (26 days/surrendered).

021022:	Applicant to unauthorized absence.

021120:	Applicant missed ship’s movement.

030205:	Applicant from unauthorized absence (107 days/surrendered).

030312:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86 (2 specs):
	Specification 1: Unauthorized absence from 0700, 020926 to 0715, 021021.
	Specification 2: Unauthorized absence from 0730, 021022 to 1230, 030205.
	Charge II: violation of the UCMJ, Article 87:
	Specification: Miss ship’s movement on 021120.
	Finding: to Charge I and II and the specifications thereunder, guilty.
	Sentence: Forfeiture of $800.00, confinement for 30 days, reduced to E-1.
	CA action 030314:  Sentence approved and ordered executed.

030312:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

030312:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

030415:	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): FR P_ (Applicant) has no desire for continued Naval service and states that he wishes to spend time with his mother.  Despite the command’s constant efforts, he will leave again and will become an administrative burden as evidenced by his two prior periods of Unauthorized Absence.  After speaking with the command Chaplain, FR P_ (Applicant) stated he was only returning so that he could be processed out of the Navy.  FR P_ (Applicant) waived his rights an Administrative Board.  I recommend that FR P_ (Applicant) receive an Other Than Honorable discharge.

030519:	Commander, Combat Logistics Squadron TWO 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 20030522 under other than honorable conditions for misconduct due to commission of a serious offense (A& 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 1-2.  The Applicant contends that his problems in the Navy can be attributed to his mother’s illness and personal stress.  While he may feel that his personal responsibilities and work-related stress were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by nonjudicial punishment and court-martial proceedings for violations of Article 86 of the UCMJ.  Furthermore, the Applicant’s second unauthorized absence episode resulted in two serious offenses because the period was in excess of 30 days and resulted in the Applicant missing ship’s movement.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient documentation for the Board to consider.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of 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), re-issued October 2002, effective 22 Aug 02 until Present, 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