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

FOR OFFICIAL USE ONLY

ex-ATAR, USN
Docket No. ND06-00701

Applicant’s Request

The application for discharge review was received on 20060502.  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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070308.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board determined that the Applicant’s discharge was improper and inequitable.  The Board’s vote was unanimous that the discharge shall change to:  HONORABLE/SECRETARIAL AUTHORITY, authority: MILPERSMAN 1910-164, Separation Code “JFF.”

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

	Equity: No basis for discharge

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214 (Service 2)
Letter to The Honorable D_ E. L_, Member, United States House of Representatives from E. A. W_, Congressional Affairs, Navy Personnel Command, dated February 13, 2006
Applicant’s general discharge time-line, dated April 26, 2006 (4 pages)
Applicant’s worksheet for separation, dated May 10, 2005 (2 pages)
Twenty-four pages from Applicant’s service record
Letter of Recommendation from P_ P_, Counselor, Sheldon High School, dated March 28, 2006
Letter of Recommendation form J_ M_, Director of Bands, Sheldon High School dated March 23, 2006
Letter from Applicant to The Honorable D_ E. L_, Member, United States House of Representatives, dated May 24, 2006

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20040324 - 20040622	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20040623		Date of Discharge:  20050509

Length of Service (years, months, days):

	Active:    00  10  17  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  36 days
	Confinement:		  None

Age at Entry:  19

Years Contracted:  4

Education Level:  12				AFQT:  70

Highest Rate:  ATAR

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.

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142.

Chronological Listing of Significant Service Events: 

041202:	NJP for violation of UCMJ, Article 86:  Unauthorized absence - less than 24 hours.
	Award:  Forfeiture of $278.00 per month for 1 month, restriction and extra duty for 14 days.  No indication of appeal in the record.

041211:	Applicant to unauthorized absence.  [Extracted from DD Form 214.]

050117:	Applicant from unauthorized absence.  [Extracted from DD Form 214.]

050301:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct due commission of a serious offense.

050301:	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.

050408:	Commander, Strike-Fighter Wing, directed the Applicant’s general discharge by reason of misconduct due to commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050509 by reason of misconduct – commission of a serious offense (A and B) with a service characterization of general (under 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 improper and inequitable (C and D).  The Board presumed regularity in the conduct of governmental affairs (E).

Equity – No basis for discharge: The Applicant contends that upon reporting Oceana Naval Base, he was “given a direct order from the watch quarterdeck to remain in or near [his] room to wait for an escort to Personnel Support Detachment.”  The Applicant explains, in his application for review, that he remained in or near his room for period in excess of 30 days, waiting for an escort to arrive.

By regulation, a discharge shall be deemed proper, unless it is determined that an error of fact, law, procedure, or discretion has substantially prejudiced the rights of the Applicant.  The Applicant was discharged with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense.  At the time of review, the Applicant’s service record did not contain the Administrative Discharge Package.  The Recorder of Record contacted the Applicant’s previous command for the missing documents.  The Board received and considered the Applicant’s discharge package as well as a string of email correspondence, discussing the Applicant’s unauthorized absence status, how to proceed, and which command should take action.  In the Board’s opinion, these emails support the Applicant’s contention that he did report for duty.  They also highlighted that fact that the gaining command either did not have or did not follow proper procedures for joining new members while the command is deployed.  Seemingly, this error in procedure caused the Applicant to be absent from his unit in excess of 30 days.  The Board was convinced that this error was prejudicial to the rights of the Applicant since he was administratively processed for separation on a basis that was not solely his fault.  Using this rationale, the Board concluded that there was no basis for discharge and unanimously voted to change the Applicant’s discharge to Honorable by reason of Secretarial Authority.  Relief granted.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 26 April 05 until Present, 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).

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 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