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

FOR OFFICIAL USE ONLY

 ex-SA, USN
Docket No. ND06-00088

Applicant’s Request

The application for discharge review was received on 20051017.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “RE 3 or better.”  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 20060802.  After a thorough review of the available 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 and reason for discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions in lieu of a trial by court-martial.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I was coerced into a fraudulent enlistment by my Navy Recruiter.  I would like the opportunity to serve under honest conditions.  I’m appealing the RE-4 on my record.  I never went to court-martial as stated.  I was asked to sign a disclaimer instigating my “Hispanic heritage”.  I am Caucasian.  I was 18 at the time, and I thought I was going to be in serious trouble.  I’ve tried to correct this, but to no avail.  I’m asking for the opportunity to serve my country on the battlefield.”

Applicant’s Remarks:  Taken from the DD Form 293:

“I was approaching the Army Recruiting Office.  When the Navy Recruiter approached me.  He promised me LASIK eye surgery and a “straight-shot” to the Navy Seal training program (as I was interested in the Special Forces).  I am currently trying to enlist in the Army Infantry/Airborne MOS.  This “mark” against me has ruined my life and shamed my family.  I’m asking to make up for it.”

Documentation

Only the service and medical records were reviewed.  The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19940830 – 19941004	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19941005		Date of Discharge:  19961210

Length of Service (years, months, days):

	Active:    00  05  05  (excludes lost time)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  631 days
	Confinement:		  None

Age at Entry:  18 

Years Contracted:  4 

Education Level:  10 (GED)			AFQT:  78

Highest Rate:  SA

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

* Not Available

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority:  MILPERSMAN, Article 3630650.

Chronological Listing of Significant Service Events: 

950115:	Applicant to unauthorized absence.  [Extracted from DD214]

950117:	Applicant declared deserter.
 
960919:	Applicant apprehended by civil authorities at Conroe, TX.

961009:	Applicant from unauthorized absence/returned to military control. [631 days]

961112:	Legal Officer, Transient Personnel Unit, Great Lakes, informed Naval Hospital Great Lakes, that the Applicant had requested separation in lieu of trial under other than honorable conditions for the good of the service and requested that the hospital determine whether Applicant requires psychiatric evaluation.  

961113:	T_ H_, Primary Care Physician, Naval Hospital Great Lakes, determined psychiatric evaluation not necessary.

961210:	Applicant discharged under other than honorable conditions by reason of separation of lieu of trail by court-martial per MILPERSMAN 3630650 and TPU LTR DTD 961203.  [Extracted from DD Form 214]

Service Record did not contain the Administrative Discharge package. 

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19961210 in lieu of a trial by court-martial (A and B) with a service characterization of under other than honorable conditions.  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 (C and D).  The Board presumed regularity in the conduct of governmental affairs (E).

In the absence of a complete discharge package, the Board presumed regularity of governmental affairs.  As such, the Board presumed that the Applicant requested discharge to escape trial by court-martial; that the Applicant had the elements of the offense(s) for which he was charged fully explained by counsel; that the Applicant admitted guilt to the offense(s); and that the Applicant had a complete understanding of the negative consequences of his actions.  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.  Further, given the Board’s presumption, no other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  Relief denied.

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 631-day unauthorized absence.  The Applicant’s unauthorized absence, a violation of Article 86 of the UCMJ and the commission of a serious offense, is punishable by punitive discharge upon conviction at 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 implies that his discharge is inequitable because he was young and feared the repercussions of his fraudulent enlistment.  The Applicant also alleges he was “coerced” into fraudulently enlisting and promised specific training and surgery.  While he may feel that his youth and immaturity was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Additionally, there is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was coerced into fraudulent enlistment by his recruiter or that he was misled in the recruitment process.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  However, even if the Applicant could show misrepresentations or coercion in the recruitment process, such actions would neither amount to a justification nor to a defense for the Applicant’s own misconduct.  Relief denied.  

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment, educational opportunities or enlistment.  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.  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 14, effective 
03 Oct 96 until 11 Dec 97, 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 5420.174D 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.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.  

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