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

FOR OFFICIAL USE ONLY

 ex-AOAA, USN
Docket No. ND06-00821

Applicant’s Request

The application for discharge review was received on 20060601.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area.  The Applicant designated the Disabled American Veterans as the representative on the DD Form 293.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 20060925. The Applicant was granted an extension until 20060929 to provide additional documentation to support his request. The Board reconvened on 20061004. 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

The Applicant and his Representative submitted the following issue, as stated on the application dated 20060925: 

“1. Request my Discharge Be upgraded Due To Equitable Relief. Since my Discharge From The Military Service, I Have Been Responsible and in Good Standing In society; My Character Has Been Appropriate as my Behavior has Also Been Appropriate. I have been employed since Discharged From Military Service; Attending Embry RiddiLe College; (Aeronautics-Major); graduating 2007. I Have changed since Discharge From Military service and have a goal and Direction to succeed, and Be Productive in Society.

Documentation

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

Character reference from A_ H. L_, 1Lt, SC, DEARNG, Company Commander, dtd March 29, 2006
Applicant’s Driving Record from the State of Delaware DMV, dtd August 18, 2006
Applicant Criminal Record Check, State Bureau of Identification, State Police Headquarters, Dover DE, dtd September 19, 2006

The Following additional documentation, received by facsimile on September 28, 2006 was considered:
Applicant’s course/credit requirements for AS OR BS in Professional Aeronautics from EMBRY-RIDDLE AERONAUTICAL UNIVERSITY, EXTENDED CAMPUS, dtd November 6, 2003 (3 pages)
Character reference letter from T_ J_, Director Warehouse Operations, U_ S_ C_S, dtd September 28, 2006
Character reference letter from Bishop M_L. H_, Pentecostal Church of God, dtd September 27, 2006
PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19900131 - 19900206	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19900207		Date of Discharge:  19930205

Length of Service (years, months, days):

	Active:    02 11 25 (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  124 days
	Confinement:		    31 days

Age at Entry:  20

Years Contracted:  4 

Education Level:  12				AFQT:  42

Highest Rate:  AOAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.5 (2)		Behavior:  2.5 (2) 		OTA:  2.90 (2)

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

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - commission of a serious offense, authority:  MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events: 

900208:	Retention Warning:  Advised of deficiency (defective enlistment and induction due to fraudulent entry into naval service, failure to disclose your pre-service civil involvement. Failure to have vehicle under control in July 1989, paid $200.00 fine), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900213:	Retention Warning:  Advised of deficiency (non-swim qualified), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900322:	Counseling/Warning:  Advised of deficiency (4th Class swimmer qualified), notified of corrective actions and assistance available, advised of consequences of further deficiencies.

900406:	Retention Warning:  Advised of deficiency (defective enlistment and induction due to fraudulent entry into naval service, failure to disclose your pre-service involvement with civil involvement /drug abuse.) Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900617:	Applicant to unauthorized absence at 2200 on 900617.

900620:	Applicant from unauthorized absence at 0530 on 900620 (3 days/surrendered).

910128:	Administrative remarks: Applicant acknowledge derogatory comments in Enlisted Performance Evaluation for the period of 900822 to 910131,

911216:	Applicant to unauthorized absence at 0530 on 911216.

920116:	Applicant declared a deserter.

920402:	Applicant apprehended by civil authorities at 0011 in Milford, Delaware 

920505:	Special Court Martial for a violation of the UCMJ, Article 86 (unauthorized absence, from 911216 until 920402).
	Findings/Plea: Guilty, except for the words “he was apprehended”.  
Sentence:  Confinement for 90 days, forfeiture of $300 per month for 3 months, reduction to E-2.
	CA 920614:  Sentence approved and ordered executed, with exception of the portion adjudging confinement in excess of 40 days is suspended for 12 months.

920506:	Applicant administratively transferred to Transient Personnel Unit, Norfolk, Virginia.

920605:	Applicant released from confinement and returned to full duty.

920616:	Applicant notified of intended recommendation for his discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

UNDATED:	Applicant advised of his rights, consulted with counsel, and elected to appear before an Administrative Discharge Board.

920628:	Applicant to unauthorized absence at 0715 on 920628.

920712:	Applicant from unauthorized absence at 2145 on 920712 (14 days/surrendered).

921117:	An Administrative Discharge Board, based upon the preponderance of evidence and by unanimous vote, found the Applicant had committed misconduct due to the commission of a serious offense, that such misconduct warranted separation, and recommended discharge under other than honorable conditions.

921119:	Applicant to administrative leave.

921207:	Commanding Officer, Transient Personnel Unit Norfolk, VA recommended to Chief of Naval Personnel (Pers-8322) that AOAA S_ (Applicant) be discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments:  “Concur with the findings and recommendation of the Board.”

930104:	Chief of Naval Personnel recommended to Assistant Secretary of the Navy (M&RA) that AOAA S_ (Applicant) be discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  

930111:	Assistant Secretary of the Navy (M&RA) approved the Applicant’s discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

930115:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

040812:	NDRB documentary record review Docket Number ND03-01450 conducted.  Determination: discharge proper and equitable; relief not warranted.

050805:	Board for Correction of Naval Records denied the Applicant’s request for discharge recharacterization and reenlistment code change.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930205 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 requests an upgrade to his discharge characterization to honorable. 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 3 retention warnings and one Special Court Martial for a violation of Article 86 (UA for 124 days). The NDRB advises the Applicant that certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline. Violation of Article 86, unauthorized absence for more than 30 days is considered a serious offense and a punitive discharge is authorized if adjudged at 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 Applicant requests an upgrade to his characterization of discharge based on post service equity. For the edification of the Applicant, 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 civilian life, subsequent to leaving the service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct, which precipitated the discharge.  Relief denied.

The following is provided for the edification of the Applicant.  The Applicant has exhausted his opportunities for review by the NDRB. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 
04 Mar 93, 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 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.

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