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

FOR OFFICIAL USE ONLY

  ex-ATAR, USN
Docket No. ND05-01411

Applicant’s Request

The application for discharge review was received on 20050823.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060406.  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 by reason of misconduct due to commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application: 

“My discharge was inequitable because it was based on one isolated incident in my 22 months of service.  I was stationed in Norfolk, VA when I went on leave to Memphis, TN for a period of 2 weeks over the Christmas holidays to visit my fiancé.  I was scheduled to return on Friday, January 5th 1996.  I was not scheduled for duty on the weekend of January 6th or 7th.  I, regretfully, decided to call in to the duty office and advise them I was back from leave on Friday, January 5th; however, I did not plan to return from Memphis until Sunday, January 7th.  On January 7th, I boarded a plane in Memphis, TN to return to Norfolk, VA in time for my first scheduled duty day on Monday, January 8th.  I had a one-hour lay over in Atlanta and I would then be on a plane headed for Norfolk, VA.  Unfortunately a snow storm kept me in Atlanta for the next 2 days.  I called my duty station commander everyday to let them know the status of the delay.  The airline put me in a hotel until the Norfolk and Atlanta airports were reopened.  I was immediately on the next flight to Norfolk, which unfortunately was on January 10th 1996.  I regret my poor judgement and understand I was wrong in my decision to not return to my duty station on the prescribed date of January 5th.  I ask the court to forgive my irresponsible decision and to please upgrade my discharge to a General/Under Honorable Conditions.  I am enclosing material to support the weather conditions on the week of January 6-13th.  I am also enclosing, though I know it’s not relevant, proof of my current academic excellence.  I understand that my actions on January 5th were wrong and irresponsible.  I have learned form that experience and believe that I have matured for the greater since.  Please do not let my future be influenced by one bad decision that I made when I was 20 years old.  Thank you for your time and consideration.  If the court requires it, I am fully prepared to come and stand in front of the court and to ask for forgiveness.”

Applicant’s Remarks:  

Documentation

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

Applicant’s DD Form 214  (Service 2)
Email from vaemergency.com, Weather Conditions on the week of Jan 6th – 13th  (2 	pages)
Applicant’s official Transcript from Wake Technical Community College
Ltr of congratulations from B_ W_, Vice President, Wake Technical Community 	College, Curriculum Education Services, dtd May 19, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19931029 – 19940807		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19940808		Date of Discharge:  19960619

Length of Service (years, months, days):

	Active:    01  10  11  (Does not include lost time.)
	Inactive:  None

Time Lost During This Period (days):  

	Unauthorized absence:  03 days
	Confinement:		  None

Age at Entry:  18 

Years Contracted:  4 

Education Level:  12				AFQT:  84

Highest Rate:  ATAA

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): National Defense Service Medal

* Not Available

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events: 

950629:	NJP for violation of UCMJ, Article 86 (2 Specs):  Unauthorized Absence.
Violation of UCMJ, Article 92  (2 Specs):  Failure to obey a lawful order.
	Award:  Forfeiture of $200.00 pay per month for 1 month, restriction and extra duty for 14 days, reduction to E-1.  No indication of appeal in the record.

960404:	NJP for violation of UCMJ, Article 86 (3 Specs):  Unauthorized Absence.
	Violation of UCMJ, Article 92 (2 Specs):  Failure to obey a lawful order.
	Award:  Forfeiture of $437.40 pay per month for 2 months, restriction and extra duty for 30 days.  No indication of appeal in the record.

960416:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by punishment under the UCMJ in your current enlistment.

960416:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

960501:	Commanding Officer, Naval Air Station, Norfolk, VA, recommended to the Chief of Naval Personnel (PERS-83) that the Applicant be discharged under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by punishment under the UCMJ in current enlistment.  Commanding Officer’s comments:  “ATAR R_ (Applicant) has proved that he is either unable or unwilling to conform to the standards required of our sailors.  He has been awarded nonjudicial punishment twice, each time with no lasting improvement in his performance and respect for the military authority.  The serious offense on which I based this processing was Airman Recruit R_ (Applicant)’s refusal to cease living off-base, and to move into the barracks.  The order was given to him directly by his Leading chief Petty Officer, and was required due to his demonstrated irresponsibility.  The many hours of counseling invested in Airman Recruit R_ (Applicant) have not borne fruit.  I recommend separation and a characterization of service as other than honorable.”

960530:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct.

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960619 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of under other than honorable conditions.  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).

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 2 nonjudicial punishment proceedings for violations of Articles 86 (5 specifications of UA) and Article 92  (4 specifications of failure to obey an order) of the UCMJ.  Violation of UCMJ Article 92 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 and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered.  The Applicant provided a college transcript and a letter of notification that he had made the Dean’s List at that the community college that he attends as documentation of his post-service.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities, in order for consideration for clemency based on post-service conduct.  At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge.  Therefore, no relief will be granted.

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 additional evidence related to this 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), Change 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 92, failure to obey a lawful 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