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

FOR OFFICIAL USE ONLY

  ex-AOAA, USN
Docket No. ND05-01488

Applicant’s Request

The application for discharge review was received on 20050907.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation by American Legion. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 060614.  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 General (Under 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 attached document/letter: 

“To whom it may concern,

I was in the Kansas Army National Guard from December 1988 to September 1995.  That’s when I join the Navy.

I went through basic training and A-school without incident.  I received top honors from a-school receiving a chit for promotion.  When I got to ship and had to go down the hole to my workstation it seemed the walls where closing in.  I went through my chain of command and the Chaplin about this condition with the answer “there nothing that could be done”.  I could no longer force myself to go down that hole.  I loved being in the military and didn’t want to do what I was about to do.  With no other choice I went AWOL.  After returning myself in the Kansas City MEP’s station I was returned to ship.  I was sent to a military psychologist where I was diagnosed as having Closter phobia.

I was discharged in July 1996 with a general under honorable condition.  I have never before and have never since been in trouble with the law.  I have married and have four children with my wife.  I have been employed since my discharge.  I am currently with General Electric as a trailer mechanic.  I am also a full time student at Aviation Institute of Maintenance.  Where I am enrolled for my associates’ degree.

If my discharge is up graded to honorable I feel that I will finally be whole again.  I know that it might seem silly that an upgrade could do this for someone but it can.

Thank You For Your Time”

[signed] S_ L. T_ (Applicant)]

Representative submitted no issues.

Documentation

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

Applicant’s DD Form 214
Certificate of Marriage
Reference Letter from T_ T_ (Applicant’s wife), dtd May 5, 2005
Employment Reference ltr from D_ B_, dtd May 13, 2005
Letter of Recommendation from L_ R_, dtd May 17, 2005
Letter of Recommendation from L_ W_ A&P, dtd May 12, 2005
Letter of verification of medical treatment from L_ P_, dtd May 10, 2005
Criminal History Inquiry by the Kansas City Police Department, not dated
Cover Letter from P_ S_ Claims Consultant, National Veterans Service, dtd August 31, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  None
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19950907		Date of Discharge:  19960726

Length of Service (years, months, days):

	Active:    00  10  19  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):  

	Unauthorized absence:  70 days
	Confinement:		  40 days

Age at Entry:  24

Years Contracted:  4 

Education Level:  11				AFQT:  66

Highest Rate:  AOAN

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, Army Service Ribbon

* Not Available

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events: 

960305:	Applicant to unauthorized absence at 0740 on 960305.

960410:	Report of Declaration of Deserter.  Applicant declared a deserter on 960405 having been an unauthorized absentee since 0740, 960305 from USS SAIPAN (LHA 2).

960513:	Report of Return of Deserter.  Applicant surrendered to military authorities on 960513 (1500) at NSR GLADSTONE, MO.  Returned to military control 960513 (1600).  Retained onboard pending return to parent command.

960514:	Applicant from unauthorized absence at 1500 on 960514 (70 days/surrendered).

960517:	Charges referred to special court-martial. 

960611:	Psychiatric Examination to determine if a 706 Board is recommended.  Applicant examined by M.N. K_, CDR MC USN.  Applicant referred by legal counsel for mental evaluation in conjunction with legal process.
	Impression:  Mild phobia (claustrophobia), not considered disabling, parallel somnambulism (according to him).
Recommendation:    Do not recommend formal 706 inquiry based on this eval. Member (Applicant) is mentally competent to make his own decisions and manifest appreciation of consequences and ramifications.

960612:	Special Court Martial.
	Charge I:  violation of the UCMJ, Article 86.
	Specification:  In that Aviation Ordnanceman Airman S_ L. T_, U.S. Navy, USS SAIPAN (LHA 2), on active duty, did, on or about 960305, without authority, absent himself from his unit, to wit: USS SAIPAN (LHA 2), located at Naval Base Norfolk, Virginia, and did remain so absent until on or about 960514 [70 days/A.]  Plea: Guilty W/E&S.  Findings: Guilty W/E&S
	Charge II:  violation of UMCJ, Article 87.
	Specification:  In that Aviation Ordnanceman Airman S_ L. T_, U.S. Navy, USS SAIPAN (LHA 2), on active duty, did, on board USS SAIPAN (LHA 2), located at Naval Base Norfolk, Virginia, on or about 960306, through design miss the movement of the USS SAIPAN (LHA 2), with which he was required in the course of duty to move. Plea: Guilty W/E&S.  Findings: Guilty W/E&S.
	Sentence:  Confinement for 40 days, forfeiture of $583 per month for 2 months, reduction to E-2.

960612:	Applicant to Naval Station Norfolk Brig.
	
960708:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct due to commission of a serious offense as evidenced by service record entries.

960716:	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.

960806:	Commanding Officer, Transient Personnel Unit, Norfolk, VA, forwarded the administrative discharge package to CNP.  Commanding Officer’s comments:  “In view of the offenses evidenced in paragraph 1d it is recommended that AOAN T_ (Applicant) be separated with a General discharge.”

	Service Record was missing elements of the Summary of Service (Performance and Behavior marks).
     
PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960726 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of general (under 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).

The Applicant contends that his problems in the Navy can be attributed to his diagnosis of claustrophobia.   On 19960611, competent medical authority diagnosed the Applicant with a mild phobia (claustrophobia) and that the Applicant was mentally competent to make his own decisions and manifest appreciation of consequences and ramifications. While he may feel that this condition 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.

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.  A general 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 his conviction by a special court-martial for violations of Articles 86 (unauthorized absence for 70 days) and 87 (missing movement) of the UCMJ.  Violations of UCMJ Articles 86 (unauthorized absence for a period of 30 days or more) and 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 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 letter of recommendation from his wife, a letter of recommendation/verification of employment for 2004-2005, a letter from an instructor at the Aviation Institute of Maintenance regarding his performance during April – May 2005, and a undated criminal records check.  While the Board acknowledges that the Applicant is undergoing treatment for his specific phobia, and that his post service period includes employment and continuing education, 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 covering more than 1 of the 11 years of the post service period and documentation of community service.  At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in the 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 86 (unauthorized absence for a period of 30 days or more) and 87 (missing movement).

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