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

 ex-AR,  USN 
Docket No. ND04-01299

Applicant’s Request

The application for discharge review was received on 20040819.  The Applicant requests the characterization of service received at the time of discharge be changed to entry level separation and the reason for the discharge be changed to “mislead by recruiter.”  The Applicant requests a personal appearance discharge review before a traveling panel closest to Houston or Galveston, TX.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area.  The 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 20050322.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, an inequity in the characterization of the Applicant’s service was discovered by the NDRB.  No impropriety was discovered.  The Board’s vote was 3-2 that the character of the discharge shall change and the Board’s vote was unanimous that the reason for discharge shall not change.  The discharge shall change to: GENERAL (UNDER 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.  “My discharge was unfair because I solely relied on information given to me by my recruiter.  Trusting in him was what got me in trouble.  I had no one else to guide me through the military process & he deceived me.  He told me that I would not get in trouble for leaving the airport & swearing in a second time.  Being that he was my recruiter I believed everything he told me.”

Documentation

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

Applicant’s DD Form 214
6 pages from Applicant’s service record
Copy ltr from RTC to Applicant’s parent’s dtd 990728 with envelope

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	981219 - 990517	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  990518		Date of Discharge:  991028

Length of Service (years, months, days):

	Active:    00  05  11		[Does not exclude lost time]
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  69

Highest Rate:  AR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  108

NMF*-No marks found

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:

990708:	Declaration of Deserter, having been in unauthorized absence since 990518.

990903:	Applicant apprehended Walker Co, TX.

990909:	Applicant turned over to RTC Security.

990909:	Incident /Complaint Report:  On or about 2305, 09SEP99, NACIC turned A_ (Applicant) over to RTC security from a UA status.  A_ (Applicant) had been UA since 0001, 18MAY99.  On or about 2323, 09SEP99 A_ (Applicant) advised of her rights in accordance with Article 31 of the UCMJ.  A_ (Applicant) acknowledged her rights and made the following statement:  She told her recruiter that she couldn’t join the Navy yet because of family problems, she had to drive her Mother around, pay the bills and take care of brothers.  The recruiter came up with the idea to go through the whole process just not board the plane.  A_ (Applicant) had nothing further to add to her statement.

990923:	NJP for violation of UCMJ, Article 86:  UA from 990518 until apprehended 990903.  
	Award:  Forfeiture of $207 per month for 1 month(s), restriction and extra duty for 14 days.  No indication of appeal in the record.

991007:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

991007:	Applicant advised of rights and having elected not to consult elected to waive all rights.

991012:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. 

991021:	CO, NTC 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 19991028 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 but not equitable (D and E).

Issue 1.  The Applicant committed a serious offense by remaining in unauthorized absence for more than 30 days, an offense punishable by punitive discharge. Therefore, her discharge was proper. However, the Board found that the Applicant’s personal obligations mitigated her misconduct, making a discharge characterization of under other than honorable conditions inequitable.  Consequently, the Board voted to change the characterization of discharge to general (under honorable conditions).  Relief granted.

The NDRB, under its responsibility to examine the propriety and equity of an applicant's discharge, will change the reason for discharge if such a change is warranted.  The summary of service clearly documents that commission of a serious offense was the reason the applicant was discharged.  The Applicant was in unauthorized absence status for 108 days, a serious offense, and returned as a result of apprehension.  Her misconduct is clearly documented. No other narrative reason for discharge could more clearly describe why the applicant was discharged.  To change the narrative reason would be inappropriate. Relief of narrative reason for discharge is not warranted.

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), Change 18, effective 
12 Dec 97 until 29 March 2000, 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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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

E.  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