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

  
 ex-HR, USN
Docket No. ND05-00542

Applicant’s Request

The application for discharge review was received on 20050207.  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 20050601.  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.  After the two assaults I grew very afraid of the U.S. Navy and member’s (men) who were to help me.”

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)
Twenty-five pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR(DEP)		000721 - 010226	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  010227		Date of Discharge:  030424

Length of Service (years, months, days):

	Active:    02  01  28
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 (12 months extension)

Education Level:  12 (GED)		AFQT:  64

Highest Rate:  HN

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:  341

 *No marks found in 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:

010724:	Applicant’s statement to NCISRA, Great Lakes, IL.  [Extracted from supporting documents provided by the Applicant.]

020129:	Naval Medical Center, San Diego, CA Psychiatric Evaluation: Assessment: AXIS I: Post traumatic stress disorder.  Adjustment disorder with depressed mood.  AXIS II: Deferred; some evidence of dependent and borderline features.  AXIS III: Intrauterine pregnancy, 10 ½ weeks estimated gestational age.  AXIS IV: Occupational stressors.  AXIS V: GAF 50, current.  [Extracted from supporting documents provided by the Applicant.]

020215:	Applicant to unauthorized absence 0645, 020215.

020315:	Applicant declared a deserter.

030121:	Applicant from unauthorized absence 1025, 030121 (341 days/surrendered).  Applicant’s EAOS was changed to 060201.

030129:	Naval Medical Center, San Diego, CA: Assessment: AXIS I: Post Traumatic Stress Disorder.  AXIS II: Occupational problem.  AXIS III: Borderline traits.  [Extracted from supporting documents provided by the Applicant.]

030320:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86:
	Specification: Absent without authority from 020215 to 030121.
	Finding: to Charge I and the specification thereunder, guilty.
	Sentence: Confinement for 15 days, restriction for 10 days, and reduction to E-1.
	CA action 030325:  Sentence approved and ordered executed.

030403:	Applicant notified of intended recommendation for discharge by reason of misconduct due to commission of a serious offense.  The least favorable characterization of service possible is Under Other Than Honorable.

030403:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

030409:	Commanding Officer recommended discharge under other than honorable conditions by reason of commission of a serious offense.

030414:	Commander, Navy Region Southwest directed the Applicant's discharge under other than honorable conditions by reason of misconduct - absent without leave (30 days or more).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030424 under other than honorable conditions for misconduct due to commission of serious offense - absent without leave - 30 days or more (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 and equitable (D and E).

Issue 1.   The Applicant contends that her problems in the Navy were the result of stress resulting from being sexually assaulted on two occasions.  The Applicant did provide a sworn statement to the Naval Criminal Investigative Service that described an assault that occurred between 24-25 May 01, but there is no evidence in the record to substantiate the claim.  Further, the Applicant did not provide any evidence to corroborate her claims of assault.  While she may feel that her fear of further harm by U.S. Navy personnel was the underlying cause of her misconduct, the record clearly reflects her willful misconduct and demonstrated she was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for her conduct or that she should not be held accountable for her actions.  Relief denied.

When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  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 her designation as a deserter with a period of unauthorized absence of 341 days.  She was found guilty by a summary court-martial for violation of Article 86 (UA) of the UCMJ.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy and falls far short of that required for an upgrade of her characterization of service.  Relief 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.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to her 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.  Under 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