Author: CAP
Last saved by: janet.goode
Company: NCPB

Docket No. ND06-00346

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

FOR OFFICIAL USE ONLY

ex-EMFN, USN
Docket No. ND06-00346

Applicant’s Request

The application for discharge review was received on 20051227.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  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 20061130.  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:

“Issue 1: As the supporting documents that I have attached and submitting demonstrate.  I contend that my service was other than honorable.  I want it note that from before my enlistment, during my enlistment and after.  Alos I was deployed to war.

Issue 2: My V.A. aside, I opine that my over all service from before during and after show and prove I was and still am a good sailor/person.

Issue 3: Our lives in the Navy are based on honor, courage and commitment.  I served my country and I believe/know/pray I’m granted my general in order to secure my veteran status and be able to re-enlist without making this decision again.  I made a choice to leave and try and save my house/family/marriage during a difficult time upon requesting time off.  I have taken responsibility for my actions and served my brig time and would admittedly do things the right way now.

Issue 4. Being a part of the Navy was one of the best and most honorable things I’ve done in my life.  Plus I enjoyed serving.

Issue 5: I would like to be able to serve my country again since I do not have the things holding me back or taking me away I should say anymore.  I still ended up losing my job, wife and my house and car having to go home to Alaska with memories of the good times I had in the military.  But I have a father retired from the military and a younger brother serving as well.  I do not want the shame of being UA to haunt me anymore.  I want my seperation code, my reentry code of RE-4 and my charecter of discharge changed so I can reach my full potential, make amends and finish my service like I started it before.  I made a couple of mistakes in my military career, but none that shouldn’t be granted another chance.  These are my issues.  Thank you for your time and please consider.”

Documentation

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

Applicant’s DD Form 214 (Member 4)
Applicant’s N. J. R. O. T. C. Unit Certificate of Promotion in recognition of demonstrated fidelity and abilities, dtd November 1, 1990
Applicant’s Certificate of Promotion, dtd January 22, 2001
Applicant’s Meritorious Advancement Recommendation Letter, dtd March 4, 2001
Applicant Recruit Training Graduation Program, undtd
Applicant’s Chief of Naval Education and Training Certificate of Completion of the prescribed course of study at the U.S. Naval Electrical “CORE” School, dtd December 12, 2001
Applicant’s Chief of Naval Education and Training Certificate of Completion of the prescribed course of study at the U.S. Naval Electricians Mate Class “A” School, dtd January 23, 2002
Applicant’s Electrical Core School Letter of Appreciation for outstanding performance and dedication to duty, dtd December 12, 2001
Applicant’s Service School Command, Great Lakes certificate designating as a Distinguished Military Graduate, dtd January 23, 2002
Letter from Commanding Officer to Applicant designating as Distinguished Military Graduate, dtd January 23, 2002
Letter from Commanding Officer designating Applicant as an Enlisted Surface Warfare Specialist, dtd October 4, 2002
Applicant’s examination profile information, dtd March 2003
Four pages from Applicant’s service record
Applicant’s Certificate of Nomination for Official Membership in the American Legion, undtd
Character Reference ltr from Elder S_ B. L_, Christian House of Prayer, dtd September 7, 2005
Character Reference ltr from Elder C_ Z_, Christian House of Prayer, dtd September 15, 2005
Letter to Applicant from Department of the Air Force, Pacific Air Forces concerning application for employment, dtd October 27, 2004
Letter to Applicant from Department of the Air Force, Pacific Air Forces concerning application for employment, dtd September 20, 2004
Applicant’s handwritten letter, dtd December 11, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20001206 - 20010121	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010122		Date of Discharge:  20040414

Length of Service (years, months, days):

	Active:    03  02  23  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  188 days
	Confinement:		  Unable to determine

Age at Entry:  24

Years Contracted:  4

Education Level:  13				AFQT:  53

Highest Rate:  EMFN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.3 (3)		Behavior:  3.0 (3)		OTA:  3.17

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Sea Service Deployment Ribbon, National Defense Service Medal, Navy Unit Commendation

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: 

001206:	Pre-service waiver for dependents and debt granted.

010504:	NJP for violation of UCMJ, Article 92: (Underage drinking and drinking in the barracks).
	Award:  Forfeiture of $607.00 per month for 2 months (1 month suspended for 6 months), restriction and extra duty for 30 days, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

030909:	Applicant to unauthorized absence at 0630 on 030909.

040310:	Applicant apprehended by San Diego Police Department for forgery at 1016 this date.

040315:	Applicant released by civilian authorities and returned to military control.  From unauthorized absence at 1645 (188 days/apprehended).

040316:	Applicant found fit for confinement.

040325:	Charges preferred against Applicant.
Charge I:  Violation of the UCMJ, Article 86:  
Specification: In that Electrician’s Mate Fireman V_ D. W_(Applicant), U.S. Navy, Navy Region Southwest Transient Personnel Unit, San Diego, California, on active duty, did, on or about 030909, without authority, absent himself from his unit, to wit: USS JOHN C. STENNIS, located at Naval Air Station, North Island, California, and did remain so absent until he was apprehended on or about 040315.  
Charge II: Violation of the UCMJ, Article 134: 
Specification 1: In that Electrician’s Mate Fireman V_ D. W_, U.S. Navy, Navy Region Southwest Transient Personnel Unit, San Diego, California, on active duty, did, at or near San Diego, California, on or about 040110, make and utter to North American Real Estate a certain check, in words and figures as follows, to wit: Pay to the order of North American Real Estate in the amount of $3,286.00 for the purpose of rent, and did thereafter dishonorable fail to place sufficient funds in the Alaska USA Federal Credit Union Bank for payment of such check in full upon its presentment for payment.
	Specification 2: In that Electrician’s Mate Fireman V_ D. W_, U.S. Navy, Navy Region Southwest Transient Personnel Unit, San Diego, California, on active duty, did, at or near San Diego, California, on or about 040128, make and utter to North American Real Estate a certain check, in words and figures as follows, to wit: Pay to the order of North American Real Estate in the amount $4,676.00 for the purpose of rent, and did thereafter dishonorably fail to place sufficient funds in the Bank of America for payment of such check in full upon its presentment for payment.

040330:	Applicant found medically qualified for separation.

040330:	Applicant requested an administrative discharge under other than honorable conditions in lieu of trial by court-martial.  
[Extracted from Commander, Navy Region Southwest’s letter dated 040409.]  

040409:	The Commander, Navy Region Southwest, exercising GCMCA, granted the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge in lieu of trial by court-martial with a characterization of service as under other than honorable conditions.

Service Record contains a partial Administrative Discharge package. 

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040424 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 records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  In the absence of a complete discharge package, 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 one or more of the charged 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.  Relief denied.

The Applicant contends his disciplinary problems were the result of trying “to save my house/family/marriage during a difficult time.”  The NDRB recognizes that serving in the U.S. Navy is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharges.  In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  The NDRB found that the Applicant's service was equitably characterized.  Relief denied.

The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

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.  Reenlistment policy of the naval service is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider in mitigation of the misconduct that resulted in the characterization of 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 violations of the Uniform Code of Military Justice, Article 86, absence without leave (for a period more than 30 days) and Article 134, Check, worthless, making and uttering – by dishonorably failing to maintain funds, 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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