Author: CAP
Last saved by: joyce.meeks
Company: NCPB

Docket No. ND05-00602

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

FOR OFFICIAL USE ONLY

 ex-EM3, USN
Docket No. ND05-00602

Applicant’s Request

The application for discharge review was received on 20050223. The Applicant requests the 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 list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation by the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050712.  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/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“ My discharge was inequitable because it was based on one incident in four years of otherwise honorable and faithful service, with no other adverse actions.

My discharge was also improper for the reasons detailed in the attached supporting document synofsis”   

Additional issues submitted by Applicant’s representative (VETERANS OF FOREIGN WARS):

“The Applicant has presented his issues clearly.  Additionally, these are conflicting dates as to when the alleged offense took place therefore, in the interest of justice we ask you to change the discharge as requested.”

Documentation

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

Supporting Document Synopsis Evidence Summary (2 pages)
Good Conduct Award
Memorandum from Medial Holding Company, Naval Medical Center, Portsmouth dtd October 12, 1999
Deserter/Absentee Form DD 553
Report of Declaration of Deserter dtd December 4, 1999
Unauthorized Absentee Notification Letter to Parents dtd November 1, 1999
PSD Separation Schedule Sheet
Personal Inventory Receipt
Request for Military Record
Applicant’s DD Form 214
Letter from Applicant dtd May 24, 2005
Standard Transfer Orders (3 pages)
Enlisted Strength Loss Data
Report/Final Separation Data
Service Related Document
Report/Permanent Change of Station (PCS) Departure Data
Enlisted Activity Loss Data
Travel Certificate   

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	960104 - 960313	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  960314		Date of Discharge:  000203

Length of Service (years, months, days):

	Active:    03 10  20  (Does not include loss time)
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  97

Highest Rate:  EM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, BATTLE”E”, AFEM, NUC, GCM

Days of Unauthorized Absence:  91

*No Marks available in service record.
 
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:

991008:	Unauthorized absence over regular liberty from USS GEORGE WASHINGTON (CVN-73).
991012:	Applicant surrendered on board USS GEORGE WASHINGTON (CVN-73) at 0730, 991012 (4 days/surrendered).

991013:	Unauthorized absence over regular liberty from USS GEORGE WASHINGTON (CVN-73).

991015:	Applicant missed ship’s movement.

000108:	Applicant apprehended by North Carolina State Police 1800, 000108 for desertion.  Returned to military control at 1805, 000108 by NACIC, Great Lakes, IL. Transferred to USS GEORGE WASHINGTON (CVN-73) 000108.

000113:	Applicant admitted to NAVMEDCEN Portsmouth, VA for suicidal ideation, diagnosed as ETOH dependence, simple phobia (hydrophobia), borderline personality disorder. Scheduled for phobia treatment; Applicant stopped after two days. Recommended for Level III ARD, refused.  Discharged from NAVMEDCEN Portsmouth, VA on 000118.

 000203:	Applicant acknowledges that he is not eligible for re-enlistment due to Separation in Lieu of Court Martial.

000203:	Applicant discharged Under Other Than Honorable Conditions/In Lieu of Trial by Court Martial, authority:  NAVMILPERSMAN, Article 1910-106 per DD Form 214.       

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000203 under other than honorable conditions in lieu of trial by court martial (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E). 

The Applicant through his representative, states that his discharge was improper because the dates of his unauthorized absences, which were the basis for his classification as a deserter were incorrect.  In the absence of a complete record, the Board presumed regularity of governmental affairs.  Therefore, the Board presumed the Applicant requested discharge to escape trial by court-martial, had the elements of the offenses for which he was charged fully explained by counsel, that he was guilty of the offenses and that he had a complete understanding of the negative consequences of his actions. Regardless of the Applicant’s and his representative’s contention, the record supports the fact that the Applicant committed a violation of the UCMJ warranting a court – martial. Further on 20000203, during administrative separation processing, the Applicant signed administrative remarks acknowledging that he is not eligible for reenlistment pending discharge IN LIEU OF TRIAL BY COURT MARTIAL and that an entry to that effect had been entered into the Applicant’s service record.

The Applicant contends that his discharge was inequitable because it was based on one incident in four years of otherwise honorable and faithful service, with no other adverse actions.  The NDRB advises the Applicant that despite a service member’s prior service record, certain serious offenses, even though isolated, warrant separation from the Navy in order to maintain good order and discipline. The Applicant is advised that unauthorized absence for more than 30 days, as well as, missing movement are considered serious offenses and are eligible for a punitive discharge if adjudged at a special or general court-martial. The record shows that the following marred the Applicant’s service:

•	991008-991012 - violation of UCMJ Article 86 (unauthorized absence) - UA from USS GEORGE WASHINGTON CVN-73. (4 days/surrendered).

•	991013- 000108- violation of UCMJ Article 86 (unauthorized absence) - UA from USS GEORGE WASHINGTON CVN-73 (87 days/apprehended)

•	991015- violation of UCMJ Article 87 (missing movement). Applicant missed ship’s movement.

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 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 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 other evidence related to his discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law 

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 
12 Dec 1997 until 10 July 2000, 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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

E.  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

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.