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

FOR OFFICIAL USE ONLY

   ex-OSSR, USN
Docket No. ND05-00838

Applicant’s Request

The application for discharge review was received on 20050419.  The Applicant requests the characterization of service received at the time of discharge changed to general/under honorable conditions.  The Applicant requests a documentary record discharge review.  The Applicant did not list a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050811.  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 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I really want to participate in a military reserve unit (primarily US Navy).  I wish to re-enlist and continue/fulfill that duty and desire I had; to serve in a military branch.  If I can request to the board a review of time that has passed and a change in re-enlistment code and character upgrade, so I can re-enlist in a reserve unit and finish what I once started.  I entered Basic Training (boot camp) as an E-2.  When I graduated I was promoted to E-3, due to my service as Section Leader, class standing, and overall participation.  Continued-During the time in basic training, I was promoted to E-3 based on my leadership, dedication as a team leader, and my dedication to my class.  Based on this merit, I was promoted by recommendation of my Division Commander.  I was then transferred to OS “A” School for, Operation Specialist. I was in the top of my class and graduated with an above average grade. I was then able to chose the USS NIMITZ (CVN-68) as my next duty station.  Prior to my reassignment, it was with great regret that I learned that my wife’s pregnancy was ended by an illness that she acquired, and at the same time my parents were in the process of a divorce.  This left my mother with the obligation of raising my younger siblings.  The recent news of both of these tragedies left me in a state of emotion that made want to be with my family until the matters were resolved.  Before I transferred from Virginia Beach (OS “A” School) to my next duty station, I called one of my shipmates assigned to the USS Nimitz in the OS Division and I had advised him of my intentions of going home and left information to my residence.  He relayed that he would pass on the information to my future assigned supervisor via chain of command.  The taken time off would then be deducted from my leave and when I was expected back.  When I returned, I was faced with these allegations of absent without leave, which I explained on my defense.  I then was forced to restriction, confined to the ship, and reduction from my pay grade. I discharged pending review.  I was then informed a few months later of my discharge status.  I feel I was in a mind state of confusion and emotional.  I realize I should have reviewed my decisions and made a stronger defense.  I have never been in trouble with law or any form of authority as a citizen. Before my enlistment, I was working in a police department as a police cadet, I was also a police explorer, and I worked as a security officer.  I attended college immediately after high school and I always did what was right.  This time period was a difficult time, however, I have reorganized my life and family situation.  I currently have a certificate in administration of justice.  I have a family and I strongly desire the chance to become a reserve in a military branch to fulfill that gap I lost.  Please give me the last opportunity by upgrading me, just enough to get back enlisted to serve my country.  I really want this second opportunity and I promise I will not make the mistake I have made in the past.  I was new to life and the separation.  I have shown that during my short time, I made an impact and displayed who I really was when I went through boot camp.  I want this second opportunity to carry out my sworn duty.  I understand that was young and I made an error that I was unaware would be irresponsible.  I wish the board would grant me this second opportunity to shine and display what I promise to uphold.  I wish to get a re entry code and an upgrade to my discharge character.”

Applicant’s remarks:  Please grant the opportunity to get me my upgrade in my discharge and re-entry code.  I am not requesting benefits or any other beneficial/financial gain.  I just want the opportunity to serve my country again. I am a family man and hard worker.  I felt I was doing the right thing by going to my family.  I made an irresponsible error.  Please assist me in achieving this goal, I promise I will do my best.  Additional, I also paid for a telephone that was broken by mistake when I stayed at a base hotel.  I am asking for an upgrade and re-entry code change, if applicable for employment purpose.  Please grant this request so I may move on with my career so I may get a second opportunity. To the unit and/or personnel will review this request, I submit this with great respect and sincerity.  Thank you.

Documentation

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

None were submitted by the Applicant

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	960516 - 961104	
	Active:   None

Period of Service Under Review:

Date of Enlistment:  961105		Date of Discharge:  970826

Length of Service (years, months, days):

	Active:    00 09 22		(does not exclude lost time)
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  13			AFQT:  35

Highest Rate:  OSSN

Final Enlisted Performance Evaluation Averages (number of marks):

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

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  38

*Not available.

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630605.

Chronological Listing of Significant Service Events:

970502:	Unauthorized absence from USS NIMITZ (CVN-68), 1740.

970610:	Surrendered from unauthorized absence, 1000 (38days).

970612:	Medical screening, USS Nimitz (CVN-68) applicant states “will do anything to get out of Navy.”  Diagnosis; occupational problem, “will not accept looking at alternative other than separation from Navy.”

970621:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86: unauthorized absence.
	Charge II: violation of the UCMJ, Article 108. (2 Specs),
	Spec 1: Willfully damaging military property.
Spec 2: Damaging military property through neglect. 
	Sentence:  Forfeiture of $250.00 pay per month for 1 month, reduced to E-1, confinement for 20 days.
	CA action 970629:  Sentence approved and ordered executed.

970623:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by his violation of the UCMJ, Article 86, absence from unit from 2 May 1997 until 10 June 1997; and Article 108, willful damage of government property on 1 May 1997.
	
970623:	Applicant advised of 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.

970821:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by his violation of the UCMJ, Article 86, absence from unit from 2 May 1997 until 10 June 1997; and Article 108, Willful damage of government property on 1 May 1997.  

970826:	COMCARGRU SEVEN directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

970827:	Applicant discharged.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970826 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).

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  After a thorough review of Applicant’s case the Board discovered no impropriety or inequity.  When the service of a member of the U.S. Navy has met the standard of acceptable conduct and performance, it is appropriate to characterize that service as honorable.  A 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.  Certain serious offenses warrant separation from the naval service in order to maintain proper order and discipline.  A Summary Court Martial for violations of UCMJ Article 86 (unauthorized absence in excess of 30 days) and Article 108 (willfully damaging military property) marred the Applicant’s service record, thus substantiating the misconduct for which he was separated.  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 and falls short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends that his problems in the Navy can be attributed to the divorce of his parents and wife’s illness.  While he may feel that his family problems were 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.

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 opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

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.

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 Naval service.  The NDRB is authorized 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 stated he has earned a certificate in administration of justice and has reorganized his life, however these statements are unsubstantiated.  Based on a lack of sufficient post service factors relief denied.  

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 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), Change 14, effective 
03 Oct 96 until 971212, Article 3630605, SEPARATION OF ENLISTED PERSONNEL 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 for unauthorized absence for a period in excess of 30 days and Article 108 for willfully damaging military property 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