Author: CAP
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Docket No. ND01-00896

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

ex-FA, USN
Docket No. ND01-00896

Applicant’s Request

The application for discharge review, received 010626, requested that the characterization of service on the discharge be changed to entry level separation or uncharacterized.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020110.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  To whom it may concern, Prior to entering the Navy for active duty I was on a delayed entry program due to an accident where I sustained fractures to both wrists. I (applicant) entered the Navy for active duty June 30, 2000. 1 was sent to basic training at Waukegan Naval Base, Illinois.  I was given a written contract with a guarantee for a specific school and specific training as a machinist on a nebular submarine.  Also included in this contract agreement was a $4,000.00 sign up bonus. I was first in my Basic Training Class and earned the title of Recruit Chief Petty Officer=R.C.P.O. This earned responsibility placed me in charge of assisting my Division to achieve their best in the Basic training at our Naval Base assignment. (Copies enclosed) Toward the end of my basic training approximately 23 days to graduation I had to report for a special physical examination.  I reported for the physical examination, the examining physician stated that I had a choice but I could not enter the submarine assignment (contract agreement) because of the accident where I had sustained fractures to both wrists.  The Lieutenant assured me with my test scores that I could easily have any job I wanted and then gave me time to think about it.  I unknowingly took this doctor's (Lieutenant) suggestion and in fact trusted him.  After this I was told to report to reclassification to sign up for the job I wanted.  I had my Yeomen call the building where this was located.  The recluses I reported to was Petty Officer G_, upon arriving I knocked, the greeting was " do you have an appointment, if not I can't speak with you, go away." I didn't have a chance to speak; he immediately brushed me off short and abrupt.  I couldn't explain to anyone what had just happened, no one would listen, in fact no one cared.  I was also concerned about my parents; they were scheduled to arrive form Colorado in a few days.  Now on top of everything else I had a flare up of "ACNE", prior to entering the Navy my complexion was clear.  I was also told by a civilian doctor that I now have permanent scarring due to the "ACNE".  I felt so depressed.  On September 01,2000 I graduated.  I sought help after graduation, still in boot camp awaiting orders.  I went to see the same doctor who saw me for my physical examination.  I sought further assistance for chronic pain and movement of the bones to my wrists.  He deceived me, while pretending to be concerned about my physical complaints and then stating he would help me, he accompanied me over to an E-8 who yelled at me called me " a faker and a baby", so I replied, " if you don't want to help me, I'll find someone who will." The Lieutenant told me, "If you want to get out so bad, why don't you just go, the gates open." I reported to a three-week school as a fireman apprentice, my dreams of becoming a nuclear engineer were all down the drain.  In the beginning I had joined the Navy to continue my education.  I felt that hard work, opportunity the Navy was to offer machinist experience then continue on to becoming an engineer.  Prior to entering the Navy earned an Associates of Arts in Heating/Air condition= HVAC.  But now I was to become a glorified flunky, no schooling, three weeks of training. 
 On September 20,2000, I left, I went to the only place that would offer me the support emotionally, spiritually and legally.  I sought this from my family.  The Navy offered me none of this, they deceived me, and they exploded me.  After 50 days, I turned myself in willingly and awaited my fate.  On December 22,2000 I was given a general discharge/other than honorable conditions.  I was told that, I could appeal this and receive a "GENERAL DISCHARGE".  I certainly hope that you are able to help me, thank you (applicant)  p.s. copies of college transcript enclosed, so that you may see the caliber of student I am.

Documentation

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

Letter from Board of Correction of Naval Records
Copy of DD Form 149

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	000415 - 000628	COG

Period of Service Under Review:

Date of Enlistment:  000629		Date of Discharge:  001221

Length of Service (years, months, days):

	Active:    00  05  23
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  11			AFQT:  65

Highest Rate:  FN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  61 

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority:  NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

Chronological Listing of Significant Service Events:

001114:	Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86:
	Unauthorized absence (UA) from 0600, 20Sep00 to 1105, 13Nov00 (61 days/surrendered).

001114:	Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  He consulted with counsel and was fully advised of the implications of his request.  The applicant stated he understood the elements of the offense(s) with which he was charged, and admitted he was guilty of all the charges preferred against him.  Specifically, he admitted to violating UCMJ, Article 86: Unauthorized absence from 0600, 20Sep00 to 1105,13Nov00 (61 days/surrendered).  The applicant stated he was completely satisfied with the counsel he had received. The applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing. 
 
001116:	The commanding officer, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed applicant’s discharge.

001207:	NJP for violation of UCMJ, Article 86: Unauthorized absence 1600-2315, 6Dec00; violation of UCMJ, Article 92 (2 specs): (1) Underage drinking, (2) Drinking while on duty.
	Award: Forfeiture of $563.70 per month for 1 month, restriction and extra duty for 15 days, reduction to FA.  No indication of appeal in the record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 001221 under other than honorable conditions in lieu of a trial by court-martial (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issue 1.  The NDRB considered the applicant’s issue that described the circumstances surrounding his enlistment, medical condition, and discharge.  Unfortunately, the remedy sought by the applicant was to go UA.  The Board noted the applicant requested an other than honorable discharge in order to escape a trial by court martial.  The NDRB found no impropriety or inequity in the discharge.  The applicant requested the discharge be changed to Entry Level Separation.  An Entry Level Separation is appropriate when there is no misconduct in the service record.  In this case, after the applicant requested an other than honorable discharge in order to escape trial by court martial, he went to NJP for additional misconduct.  The NDRB found the discharge appropriately assigned.  Relief is not warranted.

The applicant remains eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective 
11 Jul 2000 until Present, Article 1910-106 (formerly 3630650), SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B.  A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article 86, unauthorized absence for a period more than 30 days upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-Martial.

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 “afls10.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A7100/A9453/A9217/A9231