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

FOR OFFICIAL USE ONLY

 ex-MSSR, USN
Docket No. ND06-00865

Applicant’s Request

The application for discharge review was received on 20060614.  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 20070329.  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

Applicant Issues

The Applicant is requesting his discharge be upgraded to honorable.

The applicant is requesting and upgrade for Veterans Administration Benefits.

Documentation

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

Applicant’s DD Form 214 (Member 1 and 4)
Statement from Applicant, undated

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   USN	19930409 - 19950509	HON

Period of Service Under Review:

Date of Enlistment:  19950510		Date of Discharge:  19960708

Length of Service (years, months, days):

	Active:    01  01  29  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  74 days
	Confinement:		  75 days

Age at Entry:  23

Years Contracted:  5

Education Level:  8 (GED)			AFQT:  31

Highest Rate:  MS3

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, Navy Unit Commendation

* Not Available

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: 

950510:	Reenlisted this date for a term of 5 years. 

950708:	Applicant to unauthorized absence at 0715.

950810:	Report of Declaration of Deserter.  Applicant declared a deserter on 950810 having been an unauthorized absentee since 0715, 950708 from USS GEORGE WASHINGTON (CVN 73).

950820:	Applicant from unauthorized absence at 1830 (43 days/surrendered).

950824:	Applicant to unauthorized absence at 0715.

950905:	Report of Return of Deserter.  Applicant returned to military control on 950820 (1830).

950921:	Applicant missed ship’s movement.

950924:	Applicant from unauthorized absence at 1630 (31 days/surrendered).

951117:	Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86 (2 specifications): (1) On or about 950708, absent himself from his unit, and did remain so absent until on or about 950820.  (2) On or about 950824, absent himself from his unit, and did remain so absent until on or about 950924.  Article 87 (2 specifications): (1) On or about 950712, missed movement.  (2) On or about 950921, missed movement.  Article 123a (1-4, 6, 8-11): (1) On or about 950828, wrongfully and unlawfully make and utter a check in the amount of $75.00.  (2) On or about 950828, wrongfully and unlawfully make and utter a check in the amount of $75.00.  (3) On or about 950829, wrongfully and unlawfully make and utter a check in the amount of $70.00.  (4) On or about 950829, wrongfully and unlawfully make and utter a check in the amount of $75.00.  (6) On or about 950830, wrongfully make and utter a check in the amount of $75.00.  (8) On or about 950903, wrongfully and lawfully make and utter a check in the amount of $75.00.  (9) On or about 950905, wrongfully and unlawfully make and utter a check in the amount of $50.00.  (10) On or about 950906, wrongfully make and utter a check in the amount of (unreadable).  (11) On or about 950908, wrongfully and unlawfully make and utter a check in the amount of $50.00.

951120:	Applicant notified of charges.

951120:	Charges referred to special court-martial.

951211:	Special Court Martial:
	Charge I: violation of the UCMJ, Article 86:
	Specification 1: Unauthorized absence from 950708 through 950820.  Plea:  Guilty.  Finding:  Guilty.
	Specification 2: Unauthorized absence from 950824 through 950924.  Plea:  Guilty.  Finding:  Guilty.
	Charge II: violation of the UCMJ, Article 87:
	Specification 1: Missing movement through design on 950712.  Plea:  Not Guilty.  Finding:  Not Guilty.
	Specification 2: Missing movement through design on 950921.  Plea:  Not Guilty.  Finding:  Not Guilty.
	Charge III: violation of the UCMJ, Article 123a (12 specs):
	Specification 1:  Make and utter a worthless check in the amount of $75.00, on or about 950828.  Plea:  Guilty.  Finding:  Guilty.
	Specification 2: Make and utter a worthless check in the amount of $75.00, on or about 950828.  Plea:  Guilty.  Finding:  Guilty.
	Specification 3: Make and utter a worthless check in the amount of $70.00, on or about 950829.  Plea:  Guilty.  Finding:  Guilty.
	Specification 4: Make and utter a worthless check in the amount of $75.00, on or about on or about 950829.  Plea:  Guilty.  Finding:  Guilty.
	Specification 5: Make and utter a worthless check in the amount of $351.95, on or about 950829.  Plea:  Not Guilty.  Finding:  Not Guilty.
	Specification 6: Make and utter a worthless check in the amount of $75.00, on or about 950830.  Plea:  Guilty.  Finding:  Guilty.
	Specification 7: Make and utter a worthless check in the amount of $150.00, on or about 950901.  Plea:  Not Guilty.  Finding:  Not Guilty.
	Specification 8: Make and utter a worthless check in the amount of $75.00, on or about 950903.  Plea:  Guilty.  Finding:  Guilty.
	Specification 9: Make and utter a worthless check in the amount of $150.00, on or about 950905.  Plea:  Guilty.  Finding:  Guilty.
	Specification 10: Make and utter a worthless check in the amount of $150.00, on or about 950906.  Plea:  Guilty.  Finding:  Guilty.
	Specification 11: Make and utter a worthless check in the amount of $150.00, on or about 950908.  Plea:  Guilty.  Finding:  Guilty.
	Specification 12: Make and utter a worthless check in the amount of $150.00, on or about 950909.  Plea:  Not Guilty.  Finding:  Not Guilty.
	Sentence: Confinement for 3 months, forfeiture of $550.00 per month for 3 months, reduction to E-1.
	CA 960109: Sentence approved and will be executed; however, execution of that part of the sentence extending to confinement in excess of 45 days is suspended for 12 months.

951211:	Applicant to confinement at Naval Brig, Norfolk, VA.

960224:	Applicant released from confinement (75 days).

960226:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of commission of a serious offense as evidenced by service record entries.

960306:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

960418:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to commission of a serious offense, that such misconduct warranted separation, and by a vote of 2 to 1, recommended discharge under other than honorable conditions.

960423:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

960529:	Chief of Naval Personnel recommended to Assistant Secretary of the Navy (Manpower and Reserve Affairs), Applicant’s discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense resulting in conviction by a special court-martial that did not impose a punitive separation.

960611:	Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

960614:	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 was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960708 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 Applicant is requesting his discharge be upgraded 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 a Special Court-Martial hearing for violations of Articles 86 (Unauthorized Absence – 30 days or more), 87 (Missing movement) and 123a (Checks, etc., insufficient funds, intent to deceive) 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 is requesting and upgrade for Veterans Administration Benefits.  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization 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.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge. Relief is not authorized.

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, Articles 86 (Unauthorized Absence – 30 days or more), 87 (Missing movement) and 123a (Checks, etc., insufficient funds, intent to deceive).

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