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

  ex-EMFA, USN
Docket No. ND04-01367

Applicant’s Request

The application for discharge review was received on 20040902.  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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050304.  After a thorough review of the available 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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “My discharge was inequitable because it was based on an incident while my wife was sick and had to hospitalized with no other adverse action.”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	940401 - 940405	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  940406		Date of Discharge:  980426

Length of Service (years, months, days):

	Active:    04  00  21		[Does not exclude lost time]
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (9 month extension)

Education Level:  12			AFQT:  59

Highest Rate:  EMFN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.80 (1)	Behavior:  3.80 (1)		OTA:  3.80 	(4.0 evals)
Performance:  3.00 (2)	Behavior:  3.00 (2)		OTA:  3.09	(5.0 evals)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, BER (2)

Days of Unauthorized Absence:  76

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events:

960509:	Applicant extended enlistment for 9 months.

970525:	Applicant to unauthorized absence.

970611:	Applicant from unauthorized absence.

970821:	Applicant to unauthorized absence.

970828:	Applicant from unauthorized absence.  Applicant’s EAOS changed to 980428.

970902:	Applicant to unauthorized absence.

970903:	Applicant from unauthorized absence.  Applicant’s EAOS changed to 980429.

971006:	NJP for violation of UCMJ, Article 86 (3 specs): (1) Unauthorized absence from 0630, 970902 to 0630, 970903, (2) Unauthorized absence from 970821 to 970828, (3) Unauthorized absence from 970525 to 970611, violation of UCMJ, Article 134: Larceny on 971004.
	Award: Forfeiture of $540 per month for 1 month, restriction and extra duty for 30 days, reduction to E-2.  No indication of appeal in the record.

971203	Applicant to unauthorized absence.

971203:	Applicant missed movement.

971222:	Applicant from unauthorized absence.  Applicant’s EAOS changed to 980519.

980217:	Applicant in unauthorized absence from 0630 to 1300.

980218:	Applicant to unauthorized absence.

980220:	Applicant from unauthorized absence.

980226:	NJP for violation of UCMJ, Article 86 (3 specs): (1) Unauthorized absence from 0500, 971203 to 0900, 971222, (2) Unauthorized absence 0630-1300, 980217, (3) Unauthorized absence from 0630, 980218 to 1030, 980220, violation of UCMJ, Article 87: Missing ship’s movement on 971203.
	Award: Forfeiture of $250 per month for 1 month, restriction and extra duty for 40 days.  No indication of appeal in the record.

980309:	Applicant to unauthorized absence.

980316:	Applicant missed movement.

980401:	Applicant from unauthorized absence.  Applicant’s EAOS changed to 980610.

980402:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86:
	Specification: Unauthorized absence from 980306 to 980401.
	Charge II: violation of the UCMJ, Article 87:
	Specification: Missing ship’s movement on 980316.
	Charge III: violation of the UCMJ, Article 134:
	Specification: Breaking restriction on 980306.
	Finding: to Charge I, II, and III and the specifications thereunder, guilty.
	Sentence: Confinement for 30 days, reduced to E-1.
	CA action 980415:  Sentence approved and ordered executed, subject to the following:  Clemency is granted, to terminate confinement on 980415.  The Accused did not submit a request for clemency.

980426:	DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct. authority: NAVMILPERSMAN, Article 1910-140.

Applicant’s discharge package not contained in service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980426 under other than honorable conditions by reason of misconduct due to a pattern of misconduct (A).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).    

Issue 1.  The Applicant contends that his discharge was inequitable because it was based on “an incident while my wife was sick and had to be hospitalized with no other adverse action.”  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 two nonjudicial punishment proceedings for violations of Articles 86, 87 and 134 of the UCMJ.  The Applicant was also convicted at court-martial for violating Articles 86, 87 and 134 of the UCMJ.  The Applicant committed seven violations of Article 86 with a total of 76 days of unauthorized absence. 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.  While he may feel that his wife’s medical condition was 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.

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 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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

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

D.  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.

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