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

FOR OFFICIAL USE ONLY

 ex-AN, USN
Docket No. ND06-00097

Applicant’s Request

The application for discharge review was received on 20051020.  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 20060726.  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 a trial by court-martial.

 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 isolated incident in 47 months of service with no other adverse action.  My going U. A. was a result of poor judgment and personnel issues that I felt too proud to discuss with my chain of command and Chaplin.  I had fun and did well for myself while in the Navy as my records will show.  I regret how I ended my career in the Navy.  I hope the records will help you make your decision.  I would like it noted I voluntarily turned myself in.”

Documentation

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

Applicant’s DD Form 214  (Member 1)
Applicant’s DD Form 214  (Member 4)
Evaluation Report and Counseling Record, dtd April 13, 2001 to July 15, 2001
Evaluation Report and Counseling Record, dtd July 16, 2003 to February 27, 2004
Evaluation Report and Counseling Record, dtd July 16, 2001 to July 15, 2002
Evaluation Report and Counseling Record, dtd July 16, 2002 to July 15, 2003
Letter of Commendation, dtd from March to November 2003
Letter from Applicant, dtd March 8, 2006 (not signed)
Character Reference ltr from R_ J_, dtd March 6, 2006
Character Reference ltr from J_ W_, Iowa Lab Corporation, dtd February 17, 2006

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20001214 – 20001227		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20001228		Date of Discharge:  20041124

Length of Service (years, months, days):

	Active:    03  10  27  (Does not include lost time)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  50 days
	Confinement:		  None

Age at Entry:  19

Years Contracted:  4 (36 month extension)

Education Level:  12				AFQT:  44

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages 

Performance:  3.75	Behavior:  3.25		OTA:  3.67
 (Partially extracted from evaluations submitted by Applicant)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy Good Conduct Medal, National Defense Service Medal, Sea Service Deployment Ribbon, Global War On Terrorism Service Medal, Global War On Terrorism Expeditionary Medal.

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 1910-106 (formerly 3630650).

Chronological Listing of Significant Service Events: 

001214:	Pre service waiver for three chart “C” and two chart “B” violations.

040905:	Applicant to unauthorized absence at 0730 on 040905.

041025:	Applicant from unauthorized absence at 1430 on 041025 (50 days/surrendered).

041124:	DD Form 214: Applicant discharged under other than honorable conditions by reason of in lieu of trial by court-martial with the separation authority of MILPERSMAN 1910-106.

Service Record did not contain the Administrative Discharge package. 
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 20041124 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).

The Applicant requests an upgrade of his discharge characterization to honorable.
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 for which he was charged fully explained by counsel; that the Applicant admitted guilt to the offense; 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. There is credible evidence in the record that the Applicant violated Article 86 of the UCMJ. A violation of Article 86 unauthorized absence in excess of 30 days, is considered a serious offense and warrants a punitive discharge if adjudged at a 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.

For the edification of the Applicant, 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.  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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct, which precipitated the discharge.  Relief denied.

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), re-issued October 2002, effective 22 Aug 2002 until 30 May 2005, 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 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