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

FOR OFFICIAL USE ONLY

ex-MMFA, USN
Docket No. ND06-00636

Applicant’s Request

The application for discharge review was received on 20060412.  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 20070125.  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

No decisional issues were submitted by the Applicant.

Issues submitted by Applicant subsequent to submission of application:

The Applicant claims he had a learning disability.  He claims he could not comprehend the work that was needed to do his assigned job in the Navy.  

The Applicant claims he should have been given a medical separation and not separated for misconduct.  

The Applicant claims he is Bi-polar and none of his absences were beyond 180 days.

Documentation

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

Ltr from University Health System, dtd December 20, 2001
School Transcripts from State of Texas Academic Achievement Record
Tuberculosis Program Medical Consultation from Whatcom County Health Department, G_ S_, M. D., dtd March 23, 2005
Applicant’s DD Form 214  (Member 1)
Copy of a Check Statement, dtd August 17, 2004
Copy of Intake Report Child Protective Services, dtd December 13, 1991
Ltr from Applicant, dtd April 4, 2006  (4 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19980314 - 19980315	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19980316		Date of Discharge:  20010223

Length of Service (years, months, days):

	Active:    2  11  07  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  209 days
	Confinement:		  60 days

Age at Entry:  21

Years Contracted:  4 

Education Level:  12				AFQT:  32

Highest Rate:  FA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (1)	Behavior:  3.0 (1)		OTA:  3.00 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy “E” Ribbon

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: 

991208:	Applicant to unauthorized absence on 991208.  [Extracted from C.O. TPU Norfolk Administrative Separation request]

991218:	Applicant declared a Deserter on 991218. 

000109:	Applicant from unauthorized absence on 000708 (32 days). [Extracted from C.O. TPU Norfolk Administrative Separation request]

000111:	Applicant to unauthorized absence on 000111. [Extracted from C.O. TPU Norfolk Administrative Separation request]

000306:           Applicant from unauthorized absence on 000306. (55 days). [Extracted from C.O. TPU Norfolk Administrative Separation request]

000308:	Applicant to unauthorized absence on 000308. [Extracted from C.O. TPU Norfolk Administrative Separation request]

000708:	Applicant from unauthorized absence on 000708. (122 days). [Extracted from C.O. TPU Norfolk Administrative Separation request]

001109:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86: Unauthorized absence
	Specification 1:  Did, on or about 991208, without authority, absent himself from his place of duty, to wit:  USS LA SALLE (AGF 3) and remained so absent until on or about 000109.
	Plea:  Guilty; Not Guilty to the excepted words Gaeta, Italy; Guilty to the substituted words Toulon, France				
Findings:  Guilty; Not Guilty Not Guilty to the excepted words Gaeta, Italy; Guilty to the substituted words Toulon, France
	Specification 2:  Did, on or near Milan, Italy, on or about 000110, without authority, failed to go to his appointed place of duty, to wit:  USS LA SALLE (AGF-3).
	Plea:  Guilty					Findings:  Guilty
	Specification 3:  Did, on or about 000111, without authority, absented himself from his appointed place of duty, to wit:  USS LA SALLE (AGF 3) and remained so absent until on or about 000306.
	Plea:  Guilty					Findings:  Guilty
	Specification 4:  Did, on or about 000308, without authority, absented himself from his place of duty, to wit:  USS LA SALLE (AGF 3) and remained so absent until on or about 000708.
	Plea:  Guilty					Findings:  Guilty
	Charge II:  violation of the UCMJ, Article 92:
	Specification:  That on or about, 000111, failed to obey a lawful order issued by PN1 A. G. C_.  
	Plea:  Not Guilty				Findings:  Not Guilty
	Finding: to Charge I and the specifications thereunder, guilty.  Charge II and the specification thereunder, not guilty.
	Sentence: Forfeiture of $670.00 pay per month for 2 months, reduced to E-1, 60 days of confinement, and a bad conduct discharge.
	Convening authority action is not contained in the record.  [Note: Per report of results of trial dtd 001109 terms of pretrial agreement:  Bad Conduct discharge will be suspended for a period of 6 months.
	
010122:	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 commission of a serious offense.

010122:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

010201:	Commanding Officer, recommended discharge under other than honorable conditions by reason of misconduct due to a commission of a serious offense.  Commanding Officer’s comments:  “MMFR C_ (Applicant) clearly displayed a lack of responsibility and a total disregard for the Navy Core Values.  His continued unauthorized absence shows his negligence toward the rules and regulations which govern the conduct of the armed forces.  I give my strongest possible recommendation for MMFR C_ to be separated with an Other Than Honorable discharge.  He has no potential for future military service.

010214:	COMNAVPERSCOM, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to commission of a serious conduct.

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 20010223 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 records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  

The Applicant is requesting a discharge characterization upgrade to General (under honorable conditions).  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 other than honorable 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 one special court-martial hearing for violations of Articles 86 (Unauthorized absence more than 30 days) and 92 (Failure to obey law or order) of the UCMJ.  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 Applicant claims he should have been given a medical separation and not separated for misconduct.  The mere presence or claim of a personality disorder is not a bar to Naval Service.  There is no evidence in the record to suggest that the Applicant was not responsible for his misconduct or that he should not be held accountable for his actions.  In the Applicant’s case, the Board could discern no impropriety or inequity in the Applicant’s discharge based merely on the fact that the Applicant committed misconduct as a commission of a serious offense.  These acts were also considered by a three-member panel of the Board for Correction of Naval Records on 20030827.  In a written letter to the Applicant the BCNR acknowledged the Applicant’s subsequent misconduct.    Therefore, the NDRB considered the Applicant’s discharge proper and equitable.  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 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 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, 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, Articles 86 (Unauthorized absence more than 30 days) and , 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.

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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