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

  ex-ADAA, USN
Docket No. ND04-01383

Applicant’s Request

The application for discharge review was received on 20040903.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a personal appearance hearing in Washington, D.C.  The Applicant was informed that his case will first receive a documentary record review.  The Applicant listed the Veterans of Foreign Wars as his 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 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.  “The main purpose of this statement is just to let you know why I got kicked out of Navy.  Also I would like you guys to help me to get my discharge upgraded.  First off, I knew that I did something that I was not supposed to do and I did not follow the proper procedures.  What happened was my mother was sick and I were the only one who could take care of her.  My other siblings which are my two little brothers were too young at that time.  They were high school teenagers.  They did not know how to take responsibilities.  Also, I did not have no intention of doing what I did, it’s just that I were going under a lot of pressure.   One point that I am trying to get across is we are all human beings that means we all make mistakes, but I know that I would do anything to make it up.  I also know that I did something wrong and I had to pay the consequences.
    Secondly, I know that I messed up and I wasn’t supposed to act like that, but I’m asking you guys to look at me as a human being.  The main goal of this statement is that I’m asking you to help me to get my (OTH) upgraded.  In addition, I highly believe that anyone who does something wrong should have a second chance; in other words, I think that I deserve one.  Also, I want to let you know that I am so proud to be an Ex-U.S sailor in the world finest and greatest Navy.  I am always going to be committed to excellence and no matter if I am in the navy or not I am always going to fight for freedom and democracy around the world.  In fact, I still want to go back into the service. Finally, I hope you will understand the point that I am trying to get across and I thank you for your understanding.  I will be looking to be hearing from you.  Thank you for your cooperation.”

Applicant indicated that additional issues were submitted.  None were found.

Additional issues submitted by the Applicant’s representative (VETERANS OF FOREIGN WARS).  

2.  “Propriety or Equity Issue(s):  The applicant’s Other Than Honorable discharge is not equitable with his generally honorable service.

Statement:  In accordance with 32 CFR § 724, and SECNAVINST 5420.174D, the Veterans of Foreign Wars submits to the Naval Discharge Review Board (NDRB) the above issue and following statement in supplement to the Applicant’s petition.

The applicant has asked that the Board upgrade his discharge from Other Than Honorable conditions.  His service was generally honorable and he was adversely affected by an ulcerated leg condition, as is noted in his file.

The Veterans of Foreign Wars’ express purpose in providing this statement and any other submittals or evidence filed is to assist this applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 USC § 1553, and set forth in 32 CFR § 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

Applicant’s DD Form 214 (Member 1 and 4)
Letter from M_ L_, MD dated 18 July, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	010523 - 010530	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  010531		Date of Discharge:  030808

Length of Service (years, months, days):

	Active:    02  00  15  (Does not include lost time)
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  12			AFQT:  41

Highest Rate:  ADAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, NER

Days of Unauthorized Absence:  55

*No Marks Found in the service record

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:

030730:	NJP for violation of UCMJ, Article 86 (2 Specifications):  UA from 0700, 030515 to 0700, 030519 (4 days), and UA from 0700, 030602 to 2037, 030723 (51 days).
	Award:  Forfeiture of $645 per month for 2 months, restriction and extra duty for 45 days, reduction to ADAA.  No indication of appeal in the record.

030730:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

030730:  	Applicant advised of his 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.

030804:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

030804:	Commander, Naval Personnel Development Command 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 20030808 under other than honorable conditions for misconduct due to commission of a serious offense (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).

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 award of nonjudicial punishment (NJP) for two occasions of unauthorized absence.  The period of absence of 51 days is considered a serious offense under the UCMJ.  While he may feel that his family situation at the time was a factor that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further 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 NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question.  No such inequity or impropriety 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), 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.  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