Author: CAP
Last saved by: shirley.robertson
Company: NCPB

Docket No. ND04-00579

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

ex-SR, USNR
Docket No. ND04-00579

Applicant’s Request

The application for discharge review was received on 20040225.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation from American Legion. 

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 20041026.  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/Separation in lieu of trial by court martial, authority: NAVMILPERSMAN, Article 3630650.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Issues submitted by Applicant and Applicant’s representative (AMERICAN LEGION):

“1.  (Equity Issue)  This former member opines that personal and family problems contributed to and sufficiently mitigated his misconduct of record to warrant the Board’s relief.

2.  (Equity Issue)  This former member further requests that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application. 
_______________________________________________________________________

In accordance with 32 C.F.R., section 724.166; SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue in supplement to the Applicant’s petition. 

The American Legion’s express purpose in providing this statement, and any other submittals or evidence filed, is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553 and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C, enclosure (1). 

This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

Letter from Applicant
Letter from Applicant’s wife
National Guard application (8 pages)
Letter from H_ M_
Letter of recommendation from J_ M_
Letter of recommendation from R_ J_
Letter of recommendation from J_ T. M_
Copy of Phoenix Award
Copy of newspaper article
Copy of Certificate of recognition
Copy of Fire Service Instructor certificate
Copy of Emergency Medical certificate
Copy of National Fire Academy certificate
Copy of Missouri Division of Fire Safety certificate (3 pages)
Copy of professional firefighter certification
Copy of student transcript (2 pages)
Copy of Police record check (3 pages)
Letter from Applicant requesting entry in to Missouri National Guard (2 pages)
Copy of June 2004 Robertson Report (4 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive:	None
	Active:   	None

Period of Service Under Review:

Date of Enlistment:  910228		Date of Discharge:  911204

Length of Service (years, months, days):

	Active:    00  07  19
	Inactive:  00  00  03

Age at Entry:  18			Years Contracted:  8 

Education Level:  12 (GED)			AFQT:  50

Highest Rate:  SR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*	Behavior:  NMA		OTA:  2.80

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  104 

*No Marks Available

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

UNDER OTHER THAN HONORABLE CONDITIONS/Separation in lieu of trial by court martial, authority:  NAVMILPERSMAN, Article 3630650.

Chronological Listing of Significant Service Events:

910716:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 910704 having been an unauthorized absentee since 0530, 910603 from NAVHOSPCORPSCOL Great Lakes, IL.

910722:	Report of Return of Deserter.  Applicant surrendered NAVHOSPCORPSCOL Great Lakes, IL at (2223) 910721. Retained onboard for disciplinary action.

910813:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86.
	Specification: On or about 910603 without authority, did remain so absent until on or about 910721 (48days). 
	Finding:  to Charge I and the specification thereunder, guilty.
	Sentence:  Forfeiture of $503.00 pay per month for 1 month, hard labor without confinement for 45 days, restriction to NHCS for 45 days.
	CA action 910813:  Sentence approved and ordered executed.

910926:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 910925 having been an unauthorized absentee since 0615, 910826 from NAVHOSPCORPSCOL Great Lakes, IL.

911029:	Report of Return of Deserter.  Applicant apprehended by ST Louis Police Department 1445, 911021.  Returned to military control NAVHOSPCORPSCOL Great Lakes, IL 1300, 911022.  Retained onboard for disciplinary action.

911101:	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: Did on or about 910826, without authority, absent himself from his unit, to wit: NHCS, Great Lakes, IL, and did remain so absent until he was apprehended on or about 911021 (56 days).  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.

911108:	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.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19911204 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).

Issues 1-2:  On 19911101, the Applicant requested discharge for the good of the service to escape trial by court-martial.  In the request the Applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he was guilty of the offenses.  He further certified a complete understanding of the negative consequences of his actions and that characterization of service could be under other than honorable conditions.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the Applicant’s enlistment.  While he may feel that his youth and immaturity were contributing factors, they do not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service.  His service record is marred by award of non-judicial punishment (NJP) for violating the UCMJ, Article 86 and admission to violating the UCMJ, Article 86 on the second occasion in order to avoid trial by court-martial, thus substantiating the misconduct.  The Applicant claims his family members back home were subject to physical abuse while he was serving the Navy.  The Applicant states that he made a conscious decision to go UA in order to mitigate this abuse.  However, the Applicant has not provided any independent documentation or evidence to substantiate his claims.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

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.  However, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate the severity of his misconduct that served as the reason for his discharge.  

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 
04 Mar 93, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR 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 “afls14.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.