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

FOR OFFICIAL USE ONLY

  ex-AA, USN
Docket No. ND05-01127

Applicant’s Request

The application for discharge review was received on 20050622.  The Applicant requested a documentary discharge review and that his characterization of service be changed to general (under honorable conditions).  The Applicant designated Veterans of Foreign Wars as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060316.  After a thorough review of all available 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 characterization of the discharge shall not change.  The discharge shall remain under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Applicant’s issues, as stated on the application: 

“I WOULD LIKE TO ENLIST IN THE US ARMY.  THE INCIDENT WHICH RESULTED IN MY DISCHARGE WAS THE RESULT OF AN IMMATURE & FOOLISH DECISION.  SINCE THEN I HAVE MATURED & REALIZED THAT & NOW I WANT TO REDEEM MYSELF IN THE SERVICE OF MY COUNTRY.”

Additional issues submitted by the Applicant’s representative (Veterans of Foreign Wars):

“Propriety or Equity Issue(s): The applicant maintains that he is a man of honorable character and high moral standing.

Statement:  In accordance with 32 CFR § 724 and SECNAVINST 5420.174D, The Veterans of Foreign Wars Submit to the Naval Discharge Review Board (NDRB) the above issue and following statement in supplement to the Applicant’s petition.

The applicant is asking that his Under other than Honorable Discharge be upgraded based on his contention that the incident that caused his separation from the Navy in JAN01 was due to his immaturity, and that he wishes to make amends by joining the US Army and serving his country.

The Veterans of Foreign Wars’ express purpose in providing this statement and any other submittals or evidence filed is to assist this applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 USC § 1553, and set forth in 32 CFR § 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.”

Documentation

The Applicant did not provide additional documentation for the Board’s consideration.  Therefore, only the service and medical records were reviewed.  

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19991014 – 19991117		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19991118		Date of Discharge:  20010102

Length of Service (years, months, days):

	Active:    01 01 14  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  95 days
	Confinement:		  28 days

Age at Entry:  18 

Years Contracted:  4 

Education Level:  11				AFQT:  54

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

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

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  None.

* Not Available

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events: 

000301:	Applicant to unauthorized absence, on 000301.

000306:	Applicant from unauthorized absence, on 000306.

000314:	Retention Warning:  Advised of deficiency (unauthorized absence from 000301 until 000306), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

000418:	Applicant to unauthorized absence on 000418.

000719:	Applicant from unauthorized absence on 000719 (92 days).

000913:	Applicant violated the UCMJ, Article 134 by being incapacitated for duty as a result of the previous overindulgence of intoxicating liquor, on 000913.

000920:	Applicant missed movement of USS KITTY HAWK (CV-63) on 000920.

000922:	NJP for violations of the UCMJ, Article 86 (unauthorized absence, from 000418 until 000719), Article 87 (missing movement, through neglect, 000920), and Article 134 (incapacitated for the proper performance of his duties as a result of wrongful previous overindulgence in intoxicating liquor, on 000913).
	Award:  Forfeiture of $300 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

001022:	Applicant to unauthorized absence at 1300 on 001022.

001022:	Applicant from unauthorized absence at 1590 on 001022.

001205:	Summary Court-Martial.
	Charge I:  Violation of the UCMJ, Article 86 (unauthorized absence, 1300, 001022 until 1590, 001022).
	Charge II:  Violation of the UCMJ, Article 92 (failed to obey a lawful order on 001022). 
	Finding:  Not found in record.
	Sentence:  Forfeiture of $670.00, confinement for 1 month.
	CA action 001205:  Sentence approved and ordered executed.
	
Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010102 by reason of misconduct due to the commission of a serious offense (A and B) with a service characterization of under other than honorable conditions.  After a thorough review of all 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).

To be legally sufficient a finding of misconduct due to the commission of a serious offense requires only a showing, by a preponderance of the evidence, that misconduct which would warrant a punitive discharge if tried by special or general court-martial has occurred.  Applicable regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment.  The Applicant’s service was tarnished by an unadjudicated violation of UCMJ, Article 86 (unauthorized absence), and nonjudicial punishment (NJP) for violations of UCMJ, Article 86 (unauthorized absence), Article 87 (missing movement), and Article 134 (incapacitation for duty due to the previous consumption of intoxicating liquor).  Additionally, the Applicant was Court-Martialed for violations of UCMJ, Article 86 (unauthorized absence) and Article 92 (failure to obey a lawful order).  Reference (A) defines each violation of Articles 86 (in excess of 30 days), 87, and 92 as the commission of a serious offense, the misconduct for which the Applicant was discharged.  There is credible evidence in the record that the Applicant committed serious offenses.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Separations under these conditions generally result in an under other than honorable conditions characterization of service.  Relief is denied.

The Applicant contends that he was not responsible for his behavior because of his youth and immaturity.  The Applicant bears the burden of presenting substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support his contentions.  The facts are that the applicant entered the service at the legal age of 18, as do many recruits.  Most go on to serve their country with honor and integrity thus earning an honorable discharge.  In fact, the NDRB sees no connection between the Applicant’s misconduct and his alleged youth and immaturity.  The record clearly reflects his willful misconduct, demonstrating he was unfit for further service.  The NDRB found that the Applicant's service was equitably characterized.  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.  This issue is without merit, relief not warranted.

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 did not provide documentation in support of his post service accomplishments.  The Board concluded that the Applicant’s contention of high moral standing and honorable character to be insufficient to mitigate his misconduct while in the Naval service.  Relief denied.

In the absence of a complete discharge package, the Board presumed regularity of governmental affairs.  The record does document misconduct that is classified as the commission of a serious offense.  The Board presumed the Applicant’s discharge to have been conducted in accordance with that described in reference “A”.  If the Applicant feels his discharge was administratively flawed he bears the burden of establishing his issues through the presentation of substantial and credible evidence.

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 30, dated 7 Nov 00, effective 30 Aug 00 until 24 Jan 01, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 86 (unauthorized absence in excess of 30 days), Article 87 (missing movement through neglect), and Article 92 (failure to obey and order).

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, Para 211, Regularity of Government Affairs.

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