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

FOR OFFICIAL USE ONLY

     ex-AR, USN
Docket No. ND05-00737

Applicant’s Request

The application for discharge review was received on 20050321.  The Applicant requests the characterization of service received at the time of discharge be changed to uncharacterized.  The Applicant requests a personal appearance discharge review before a traveling panel closest to Newark, New Jersey.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area.  The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050812.  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:

“FOR THE REASON THAT I WILL TO GO BACK TO THE NAVY.”

“I am writing you this letter regales to a code that I receive when I was discharge from the Navy.  
My name is S_ L_ C_, (Applicant) I enjoy in the Navy in August 28 of 2002.  I decide to enjoy in the military because I want to serve this country and I love the military lie since I was a child.  
After I graduated from High School, the first thing that I did was take the test to enjoy in the Navy, and I passed with a good score.  How you all know boot camp is not easy at the beginning but we get use to it no matter what.

When I was there, I strike for AIRMAN, so I attend to Pensacola Florida for this course, after graduated from this course they send me to the base that was located on Oxnard California (Point Wheneme).  Everything was good until my mom got sick, so I decide to go UA to my house.  I was there with my mom until she was ok, so when I went back to the base they punish me and I knew it that I deserved to be punish.  On the next month I decide to go UA again for the same reason, but before I left, I ask my Chief if I may go or if they can do something that can help me out, but there answer were no.  So with out thinking, I went UA for the second time.  When I went back to the base, they were already gone to the ship for detachment.  There fore they keep me in the base for a week, then they ship me over the fleet where my squadron was located.

After being in the ship for 2 weeks, they send me to Captain mask so he decide that I have to go to the Brig.  I went there, I did good I did everything that they told me to do so I didn’t have any problems with them.  My Master Chief came down there to tell me about my discharge.  I was confusing but later on I decide that I don’t want to get out of the Navy that I want to continue here, but they said it was to late, that my papers were already done.

Sir, I know that I choose a really bad idea going UA for 2 times, but at that time I could not be alright knowing that my mother was sick with no body to take care a bout her.  I also have proofs that my mother was in a serious conditions.

The main point is that I will like to go back to the navy, I have try all the possible ways but they always ask me if I got my code change.  The code that I have is E-4 so, if I will like to go back to the navy, I have to get another code that may be able to reenlist.  Please Sir, I am really sorry for what I did long time ago, I promise you that I will do my best if you give me the chance to go back, if I have to do anything to go back I will do it no matter what, if I have to go back to boot camp I will go or if I have to go back to the brig I will go, I you tell me to go right know I will.

I just want to get an opportunity to demonstrate you, and these country that I would be a excellent sailor and I would be proud to serve this country.

Sincerely, 

S_ L. C_  (Applicant)

P.S.  Please give me just one more chance to demonstrate what I can do for these country I would do anything for that chance.”

Applicant provided the following Remarks:

“My mom was sick and there was no body to take core for her.  There is a note of the doctor inside the package.  (envelope).”

Documentation

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

Applicant’s DD Form 214  (Member 4)
Applicant’s DD Form 214  (Member 1)
Statement from Paredes Medical Associates, Dr. P_, dated January 25, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	020511 - 020814	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  020815		Date of Discharge:  030409

Length of Service (years, months, days):

	Active:    00  07  25 		(Does not exclude lost time)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  51

Highest Rate:  AR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NOB			Behavior:  1.0 (1)		OTA:  1.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  39

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:

030116:	Applicant to unauthorized absence, from VAW 112 at NBVC Point Mugu, CA, as of 0730.

030117:	Applicant missed movement of USS CARL VINSON (CVN 70) from San Diego, CA on this date.

030206:	Applicant from unauthorized absence.

030208:	Applicant to unauthorized absence from USS CARL VINSON (CVN 70) at Pearl Harbor, Hawaii as of 0730.

030208:	Applicant missed movement.

030226:	Applicant surrendered and returned to military jurisdiction.

030303:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86 (2 specs):
	Specification 1: In that Airman Recruit S_ L. C_ (Applicant), U.S. Navy, CARAEWRON ONE ONE TWO, on active duty, did, on or about January 16, 2003, without authority absent himself from his unit to wit:  duty VAW 112, located at Point Mugu, CA, and did remain so absent until on or about February 6, 2003.
	Specification 2:  In that Airman Recruit S_ L. C_ (Applicant), U.S. Navy, CARAEWRON ONE ONE TWO, on active duty, did, on or about February 8, 2003, without authority absent himself from his unit, to wit:  duty VAW 112, located on board USS CARL VINSON and did remain so absent until on or about February 26, 2003.
	Charge II: violation of the UCMJ, Article 87 (2 specs):
	Specification 1:  In that Airman Recruit S_ L. C_ (Applicant), U.S. Navy, CARAEWRON ONE ONE TWO, on active duty, did, on or about January 17, 2003, through neglect miss the movement of USS CARL VINSON, with which he was required in the course of duty to move.
	Specification 2:  In that Airman Recruit S_ L. C_ (Applicant), U.S. Navy, CARAEWRON ONE ONE TWO, on active duty, did, on or about February 8, 2003, through neglect miss the movement of USS CARL VINSON, with which he was required in the course of duty to move.
	Finding: to Charge I and the specifications thereunder, guilty.  Charge II, specification 1, guilty and specification 2, not guilty.
	Sentence: Forfeiture of $750.00, 25 days confinement.
	CA action 030303:  Sentence approved and ordered executed.  The Gold Eagle Brig, USS CARL VINSON, is designated as place of confinement.

030313:	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 conditions 

030313:  	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.

030320:	Commanding Officer, Carrier Airborne Early Warning Squadron ONE ONE TWO, recommended to Commander, Carrier Group THREE, Applicant’s discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments (verbatim):  I believe AR C_ (Applicant) is at strong risk of going U.A. in the future.  He is either incapable, or simply unwilling, of adhering to the rules and regulations of this command and the U.S. Navy, and is simply unwilling to conduct himself in a manner conducive to good order and discipline.  I strongly recommend that AR C_ (Applicant) be separated from the naval service by reason of misconduct due to commission of a serious offense, and that his characterization of service be Under Other Than Honorable.

030322:	COMCARGRU THREE 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 20030409 under other than honorable conditions for misconduct due to commission of a serious offense (A and 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).

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 a summary court-martial conviction for a violation of Articles 86 and 87 of the UCMJ.  Violations of Article 87 are considered serious offenses.  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.  Therefore the Board found his under other than honorable conditions characterization appropriate.  Relief is not warranted.

By regulation, members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an uncharacterized or entry-level separation characterization of service.  The Applicant was notified of the recommendation for his administrative separation on his 210th day of enlistment, making him ineligible for an uncharacterized discharge regardless of his misconduct.  Relief on this basis is not warranted.

The Applicant contends that he committed violations of Articles 86 and 87 in order to assist his mother due to her medical problems.  While he may feel that attending to his family responsibilities 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.

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 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 87, missing movement, 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.

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