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

   ex-YNSR, USN
Docket No. ND05-00644

Applicant’s Request

The application for discharge review was received on 20050308.  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 20050727.  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:

“Attend college, re-enlist in the military”

Applicant’s Remarks:  “I understand the meanings of the Navy’s Core Values.  If you would look in my past Navy career you will see LOA’s and Citations.  I am able & mature enough to understand that, that is why I would like your permission to re-enlist in the military & from there further my education.”
    
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)	030925 - 031019	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  031020		Date of Discharge:  041020

Length of Service (years, months, days):

	Active:    01  00  01  (Does not exclude lost time)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  50

Highest Rate:  YNSR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*		Behavior:  NA*		OTA:  NA*

Military Decorations:  None

Unit/Campaign/Service Awards:  National Defense Service Medal

Days of Unauthorized Absence:  103

*Not available

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:

040607:	Medical evaluation:  Applicant referred to medical by command chaplain after he expressed thoughts of suicide during a counseling session.  The patient admits to fleeting thoughts of killing himself because he “can’t take being on the ship” or being in the navy.  He has no history of suicide attempts and has no specific plan.  The patient has been aboard Ponce for one week and is currently assigned as an FSA.  Impression:  Axis I:  Adjustment d/o w/depressed mood, not actively suicidal, suspect patient has poor coping skills which is contributing to his distress.  Axis IV:  Impending financial problems, potential legal problems due to UA.

040625:	Unauthorized absence from USS Ponce (LPD-15) located at NAVSTA, Norfolk, VA on 1200, 040625.

040628:	Missed movement of USS Ponce (LPD-15) located at NAVSTA, Norfolk, VA, underway on 040628. 

040712:	Missed movement of USS Ponce (LPD-15) located at NAVSTA, Norfolk, VA, underway on 040712. 
 
040724:	Declared a deserter.

040726:	Missed movement of USS Ponce (LPD-15) located at NAVSTA, Norfolk, VA, underway at 1100, 040726. 
 
040805:	Missed movement of USS Ponce (LPD-15) located at NAVSTA, Norfolk, VA, underway at 1100, 040805. 

040915:	Missed movement of USS Ponce (LPD-15) located at NAVSTA, Norfolk, VA, underway at 0800, 040915.

040922:	Missed movement of USS Ponce (LPD-15) located at NAVSTA, Norfolk, VA, underway at 0700, 040922.

041006:	Returned from Unauthorized Absence on 0700, 041006.

041006:	NJP for violation of UCMJ, Article 134:  Mail: taking, opening, secreting, destroying, or stealing; violation of UCMJ Article 121:  (2 Specs), Larceny or wrongful appropriation; violation of UCMJ, Article 92:  Failure to obey other lawful order; violation of UCMJ, Article 87:  (6 Specs), Missing movement; violation of UCMJ, Article 86:  Absence from unit.
	Award:  Forfeiture of $621.00 pay per month for 2 months, restriction and extra duty for 45 days and processing for administrative separation under other than honorable conditions.  No indication of appeal in the record.

041006:	Applicant notified of intended recommendation for discharge by reason of misconduct due to the commission of a serious offense.  Applicant notified that the least favorable characterization of service possible is under other than honorable conditions.

041006:  	Applicant advised of his rights and having elected not to consult with qualified counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

041008:	Commander, Amphibious Group Two authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

Service Record contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20041020 under other than honorable conditions for misconduct due to commission of a serious offense (A and B).  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 (C and D).  The Board presumed regularity in the conduct of governmental affairs (E).  

Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  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 an unauthorized absence for a period of 103 days, six missing movements, orders violations, larceny, and misconduct involving the U.S. mail.  This misconduct resulted in nonjudicial punishment proceedings for violations of UCMJ Articles 86, 87, 92, 121, and 134.  Under applicable regulations, a violation of any of the above UCMJ Articles is considered a serious offense.  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.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief is not warranted.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the 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.  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.  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, unauthorized absence in excess of 30 days, Article 87, missing movement, Article 92, failure to obey order or regulation, Article 121, larceny, or Article 134, mail, taking opening, secreting, destroying, or stealing, 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 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.

E.  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