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

FOR OFFICIAL USE ONLY

ex-SR, USN
Docket No. ND06-00670

Applicant’s Request

The application for discharge review was received on 20060419.  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 20070208.  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 serious offense - absent without leave - 30 days or more.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

Equity- Quality of service

Equity – Family problems

Documentation

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

Applicant’s DD Form 214 (Member 1)
Enlisted Performance Evaluation Report for September 29, 1993 to January 31, 1994
Enlisted Performance Evaluation Report for February 1, 1994 to November 11, 1994
Three pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19930226 - 19930324	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19930325		Date of Discharge:  19941111

Length of Service (years, months, days):

	Active:    01  07  17  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  56 days
	Confinement:		  24 days

Age at Entry:  19

Years Contracted:  4

Education Level:  12				AFQT:  57

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.4 (2)		 Behavior:  3.2 (2)		OTA:  3.40

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Southwest Asia Service Medal w/1 Bronze Star, Armed Forces Expeditionary Medal, National Defense Service Medal

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

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

Chronological Listing of Significant Service Events: 

930325:	Applicant briefed on Navy Policy on Drug and Alcohol Abuse as set forth in OPNAVINST 5350.

940705:	Applicant to unauthorized absence at 0600.

940804:	Applicant declared a deserter this date.

940830:	Applicant from unauthorized absence at 1445 on 940830 (56 days/surrendered) 

940924:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86:
	Specification: UA 940705 to 940902.
	Charge II: violation of the UCMJ, Article 112a:
	Specification: Wrongful use of marijuana from 940705 to 940902.
	Finding: to Charges and the specifications thereunder, guilty.
	Sentence: Forfeiture of $542.00, confinement for 30 days, reduced to E-1.
	CA action 940928:  Sentence approved and ordered executed.

940924:	Applicant to confinement.

UNDATED:	USS AMERICA (CV-66) Substance Abuse Dependency Evaluation.  Applicant found not dependent on THC, no abuse pattern noted.  Process for separation.

941015:	Applicant found medically qualified for separation.

941018:	Applicant from confinement.  [Date extracted from DD Form 214, Block 29.]

941018:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as other than honorable by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse as evidenced by the summary court-martial conviction under the UCMJ in your current enlistment. [Extracted from CO, USS AMERICA (CV-66) message dated 941026.]

941018:	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.  [Extracted from CO, USS AMERICA (CV-66) message dated 941026.]

941026:	Commanding Officer, USS AMERICA (CV-66), recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse.

941108:	BUPERS, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense - absent without leave - 30 days or more.

		Service Record is missing elements of summary of service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19941111 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

Equity – Quality of service:  The Applicant contends that his service was excellent to outstanding prior to discharge.

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 summary court martial for violations of Articles 86 (unauthorized absence, 56 days) and 112a (wrongful use, possession, etc., of a controlled substance) of the UCMJ.  Violations of Articles 86 (UA for a period greater than 30 days) and 112a are considered serious offenses, for which a punitive discharge is authorized if adjudged by a special or general court martial.  Mandatory processing for separation is required for Sailors who abuse illegal drugs.  The Applicant was dual processed for both of the serious offenses that he committed and the Separation Authority, BUPERS, selected the narrative reason for discharge as misconduct, separation code “HKD”, absent without leave -30 days or more.  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.

Equity – Family problems:  The Applicant contends that family problems caused him to make a poor decision resulting in his unauthorized absence.

The NDRB recognizes that serving in the U.S. Navy is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharges.  In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  The NDRB found that the Applicant's service was equitably characterized.  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 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT. 

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 greater than 30 days) and 112a (wrongful use, possession, etc., of a controlled substance.)

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