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

 ex-DR, USN
Docket No. ND04-01077

Applicant’s Request

The application for discharge review was received on 20040622.  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 20041222.  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.  “I feel that my discharge should be upgraded because I feel that I have paid my debts.  I do know that going U.A. is wrong but only to an extent.  My reasons for leaving revolved around family issues, which I had addressed in A-school.  I was to get married following completion of A-school.  She had a child and I requested not to go oversees.  The school instructors that I had talked to felt that it were irrelevant.  I took my leave of absence after completion of A-school and did not get married because I was going oversees.  It was a hardship on our relationship after being stationed in Sasebo, Japan for about 1.5 yrs I took another leave of absence and got married.  I had requested to be separated from the military to be with my family, and they reviewed my case and declined my request.  I also was informed that anthrax vaccine was to be a mandatory shot.  When I heard of this news, it upset me.  My father was a friend with someone whom was in Desert storm & took the cycle of shots for anthrax, following thereafter he became very ill.  Now he is affected seriously & has a hard time going through life pain free.  Sometimes he is wheelchair bound.  I know that it only affects a small percentage & the chances are small, but I did not want to take the chance.  I feel that I deserve my upgrade for I am trying to make a career in law enforcement & have a future for my wife and son.  Thank you very much  B_ D_ (Applicant)”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR(DEP)		961015 - 970604	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  970605		Date of Discharge:  010321

Length of Service (years, months, days):

	Active:    03  09  17	Does not reflect lost time
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (12 months extension)

Education Level:  12			AFQT:  52

Highest Rate:  DA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (1)	Behavior:  2.00 (1)		OTA:  2.17

Military Decorations:  None

Unit/Campaign/Service Awards:  EPM

Days of Unauthorized Absence:  762

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:

981017:	Applicant to unauthorized absence 0715, 981017.

990110:	Applicant from unauthorized absence (86 days/surrendered).

990212	Applicant to unauthorized absence 0700, 990212.

001219:	Applicant from unauthorized absence 2142, 001219 (676 days/apprehended).

010208:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86 (2 specs):
	Specification 1: Unauthorized absence from 961017 to 990110.
	Specification 2: Unauthorized absence from 990212 to 001219.
	Finding: to Charge I and the specifications thereunder, guilty.
	Sentence: Confinement for 30 days, reduction to E-1.
	CA action 010214:  Sentence approved and ordered executed.

010222:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by absent without leave (30 days or more).

010222:	Applicant advised of 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 

010227:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to absent without leave (30 days or more).

010307:	Commander, Navy Region Southwest directed the Applicant's discharge under other than honorable conditions by reason of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010321 under other than honorable conditions for misconduct due to absent without leave - 30 days or more (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).

Issue 1:  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the Applicant’s enlistment.  While he may feel that his family problems were contributing factors, they do not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service.  His service record is marred by award of summary court-martial for violating the UCMJ, Article 86 on two separate occasions thus substantiating the misconduct.  Relief denied.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.   

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.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   At this time, the Applicant has not provided verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  

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.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  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 31, effective 
25 Jan 01 until 21 Aug 02, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023