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

  ex-MMFR, USN
Docket No. ND05-00401

Applicant’s Request

The application for discharge review was received on 20050103.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050412.  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).  Discharge in Absentia.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I know that I made a terrible mistake.  I was to arrogant at the time to realize that there were other ways to deal with my leave problems.  I wish I could change what I did, but I can’t.  I am so sorry for what I have done, but I don’t think I should have to pay for it the rest of my life.  I want to pursue a career in law enforcement, but I can’t do this career with my discharge the way it is.  I served honorably in the U. S. Navy for three years, I would like to repay my last year by becoming a peace officer and serving my country again.  So I ask that you please merciful and upgrade my discharge thank you.”

Documentation

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

Letter from Applicant, undated
Letter of reference from M_ K_, mother of Applicant, dated December 25, 2002 (2 pages)
Letter of reference from MM1 J_, dated January 15, 2003
Letter of reference from J_ L. K_, Esquire, dated December 23, 2002
Letter of reference from N_ B_, dated December 25, 2002
Letter of reference from S_ D_, dated December 22, 2002
Letter of reference from S_ K_, dated December 25, 2002
Letter of reference from best friend, dated January 09, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	980707 - 990609	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  990610		Date of Discharge:  040102

Length of Service (years, months, days):

	Active:    04  06  23 (Does not exclude lost time)
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  35

Highest Rate:  MM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  254

*No marks found in Applicant’s 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:

020318:	Unauthorized absence from USS ANCHORAGE (LSD 36) at NAVSTA San Diego, CA, as of 0700, 02MAR18.  Applicant declared a deserter.

020405:	Applicant missed movement of USS ANCHORAGE (LSD 36) at NAVSTA San Diego, CA.

020408:	Applicant missed movement of USS ANCHORAGE (LSD 36) at NAVSTA San Diego, CA.

021126:	Applicant apprehended by civilian authority 1958, 26NOV02 in Myrtle Beach, SC and returned to military control by NACIC North Chicago, IL.

021126:	Applicant to Pre-trail confinement.

021206:	Returned to TPU.

030116:	Special Court Martial:
	Charge I: violation of the UCMJ, Article 86, (1 specification):
	Specification 1:  Unauthorized absence from on or about 26 November 2002.
	Charge II:  violation of the UCMJ, Article 87, (1 specification):
Specification 1:  Miss movement through design on or about 8 April 2002.
Charge III:  violation of the UCMJ, Article 112a, (1 specification):
Specification 1:  Wrongfully possess eight bottles of anabolic steroids on or about 17 March 2002.
	Findings: to Charge I, II, III and the specifications there under, guilty.
	Sentence: Confinement for 75 days, reduction to E-1 and be discharged from the naval service with a bad conduct discharge.
	CA 030710: Sentence approved and ordered executed, except for bad conduct discharge.

030122:	Applicant released from confinement and will be credited for 51 days of confinement against the sentence adjured.

030908:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service possible is under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to the commission of a serious offense.

030908:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ, Article 27(b), elected to waive all rights.

031024:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to the commission of a serious offense.  Commanding Officer’s comments (verbatim):  MMF K_ (Applicant) was apprehended in Myrtle Beach, SC by Myrtle Beach Police Department on 26 November 2002 after being an unauthorized absentee from USS ANCHORAGE (LSD 36) since 17 March 2002.  He was delivered to Transient Personnel Unit, Norfolk, VA on 6 December 2002.  At a Special Court-Martial held on 10 July 2003, he was awarded a Bad Conduct Discharge, but pursuant to the addendum of 16 January 2003, the Convening Authority suspended the BCD for twelve months.  During his eight months of unauthorized absence, this Sailor’s shipmates assumed his professional, watchstanding and maintenance responsibilities.  As evidenced by his UCMJ violations, MMFR K_ (Applicant)’s conduct clearly demonstrates his lack of commitment and inability to conform to basic Navy standards.  Accordingly, I emphatically recommend MMFR K_ (Applicant) for immediate discharge from the Navy under Other than Honorable conditions.

031028:	CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

Complete discharge package unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged, in Absentia, on 20040102 under other than honorable conditions for misconduct due to commission of a serious offense (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. 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 a special court-martial for violations of UCMJ Articles 86 (Unauthorized absence), Article 87 (Missing ships movement), and Article 112a (Possession of 8 bottles of steroids).  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  Relief denied.
 
There was nothing in the records, nor did the Applicant provide any documentation, to refute the presumption that he was treated unfairly by his chain of command.  

Additionally, 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.  

The following is provided for the edification of the Applicant.  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 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.  The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge.   

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 additional documentation to support any claims of post-service accomplishments or any other evidence relating 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), 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 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