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

FOR OFFICIAL USE ONLY

ex-CS3, USN
Docket No. ND06-00585

Applicant’s Request

The application for discharge review was received on 20060329.  The Applicant requests that the Narrative Reason for Separation be changed to “Medical 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 20061214.  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 and the reason for discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to commission of serious offense - absent without leave - 30 days or more.

The NDRB did note administrative error(s) on the original DD Form 214.  Block 29, Dates of Time Lost During This Period, should read:  “TL: 2004JAN28 TO 2004MAR17.”  The Commander, Navy Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“To Be able to obtain VA Benefits due to leg injury sustained while on active duty.”

Documentation

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

Applicant’s DD Form 214
Applicant’s Authorization for Use and Disclosure of Protected Health Information, 	ARP/Phoenix form, dtd March 1, 2006

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20010830 - 20011028	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20011029		Date of Discharge:  20040426

Length of Service (years, months, days):

	Active:    02  05  28  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  49 days
	Confinement:		  None

Age at Entry:  20

Years Contracted:  4 (12-month extension)

Education Level:  12				AFQT:  40

Highest Rate:  CS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (1)		Behavior:  3.0 (1)		OTA:  3.50

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal

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: 

031023:	Applicant to limited duty.  [Extracted from NAVPERS 1070/605, History of Assignment.]

040128:	Applicant to unauthorized absence at 0730 on 040128.

040227:	Applicant declared a deserter.

040317:	Applicant from unauthorized absence at 1415 on 040317 (49 days/surrendered).  EAOS changed to 051216.

040325:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable by reason of misconduct - commission of a serious offense.

040325:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

040406:	Commander, Navy Region, Mid-Atlantic, authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to commission of serious offense - absent without leave - 30 days or more.

040510:	Commanding Officer, Naval Support Activity, Norfolk, VA, discharged Applicant under other than honorable conditions by reason of misconduct due to commission of serious offense - absent without leave - 30 days or more.  Commanding Officer’s comments:  “Petty Officer E_(Applicant) went in an unauthorized absence status on 040128, was declared a deserter on 040301, and returned on 040317 (49 days).  He as notified under the Administrative Board Procedure and chose not to request a board hearing.  Petty Officer E_ as in the Navy for over two years and was well aware of the Navy’s rules and regulations.  He had no potential for future service.  Separation with an Other Than Honorable Discharge was appropriate in his case.”
	“Member was separated locally on 040426 under authority granted by MILPERSMAN 1910-700 with an Other Than Honorable Discharge for misconduct with a HKD separation code.”

Service Record contains a partial Administrative Discharge package. 

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040426 by reason of misconduct due to commission of serious offense - absent without leave - 30 days or more (A and B) with a service characterization of under other than honorable conditions.  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).  The Board presumed regularity in the conduct of governmental affairs (E).

The Applicant did not request a discharge characterization change.  Applicable regulations stipulate that a request for review from an who does not have an Honorable discharge shall be treated as a request for a change to an Honorable discharge.  

The Applicant request a Narrative Reason for Separation change to “medical under honorable conditions.” The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted.  The summary of service clearly documents that misconduct due to commission of a serious offense was the reason the Applicant was discharged.  Since no other Narrative Reason for Separation could more clearly describe why the Applicant was discharged, a change would be inappropriate.

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 a period of unauthorized absence of 49 days, which is a  violation of Articles 86 of the UCMJ.  Unauthorized absence for more than 30 days is considered a serious offense for which a punitive discharge is authorized if adjudged by a special or general court martial.  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 Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  There is no requirement or law that grants re-characterization 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. 

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), re-issued October 2002, effective 22 Aug 02 until 25 April 05 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 more than 30 days).

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