Author: CAP
Last saved by: joseph.curtis
Company: NCPB

Docket No. ND06-00725

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

FOR OFFICIAL USE ONLY

ex-AR, USN
Docket No. ND06-00725

Applicant’s Request

The application for discharge review was received on 20060509.  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 20070302.  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 by reason of separation in lieu of trial by court martial.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated:

The Applicant claims he was told he would be able to re-enter service in six months after discharge.

The Applicant is claiming youth and immaturity as a contributing factor in his misconduct.

The Applicant is seeking an upgrade to re-enter into the national Guard.

Documentation

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

Applicant’s DD Form 214 (Service 8)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20020424 - 20020614	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20020615		Date of Discharge:  20041004

Length of Service (years, months, days):

	Active:    02  03  19(Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  121 days
	Confinement:		  None

Age at Entry:  18 

Years Contracted:  4 

Education Level:  09				AFQT:  38

Highest Rate:  AA

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 1910-106 (formerly 3630650).

Chronological Listing of Significant Service Events: 

040120:	NJP for violation of UCMJ, Article 134: Carrying a concealed weapon.
	Award:  Forfeiture of $704.00 pay per month for 2 months, restriction for 30 days, reduction to E-2 (suspended for 3 months).  No indication of appeal in the record.

040517:	Reduction in pay grade awarded at NJP on 040120 vacated due to continued misconduct.

040920:	Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86:  (2 specifications), Spec 1: On or about 040517 without authority, absent himself form his unit and did remain so absent until on or about 040609; Spec 2: On or about 040614 without authority, absent himself form his unit and did remain so absent until on or about 040920.  

040923:	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 admitted he was guilty of violating UCMJ, Article 86: Absent without authority from his unit or organization on two occasions for 24 and 99 days respectfully.  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.  

040924:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of separation in lieu of trial by court-martial.

040924:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

040924:	The Commanding Officer, Helicopter Combat Support Squadron Three, approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge.

040928:	NJP for violation of UCMJ, Article 86 (2 Specifications): On or about 040517 without authority the Applicant absent himself from his unit and did so remain absent until on or about 040920.  Award: Forfeiture of $587.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to next inferior pay grade.  No indication of appeal in the record.

041004:	Applicant discharged as per DD Form 214.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20041004 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). 

After a review of the Applicant’s case, the NDRB determined that all conditions for separation in lieu of trial were met; charges were preferred for violation of UCMJ Article 86 on 20040920; a request for an administrative discharge in lieu of trial by court martial was submitted by the Applicant on 20040923; and the request was subsequently approved on 20040924.  The Command then notified the Applicant of administrative separation with the least favorable characterization of service as under other than honorable conditions by reason of separation in lieu of trial by court-martial (SILT).  This notification action while not required, was found not to be prejudicial to the Applicant.  A review of the record also indicates, on 20040928, the Applicant went to a subsequent nonjudicial punishment proceeding for violation of UCMJ Article 86.  Although the NJP had an impact on the member, it had no impact on the previously approved discharge.  Relief is denied.

The Applicant requested an honorable discharge.  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 2 nonjudicial punishment proceedings for violation of UCMJ Article 134 (Carrying a concealed weapon) and 2 incidents of Article 86 (Unauthorized absence) for which the applicant sought and received an administrative separation to avoid trial by 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 states that he was told that after six months he could have his discharge upgraded.  There is no law or regulation that authorizes a discharge to be automatically upgraded after six months.  A former service member has 15 years, from the date of discharge, to petition the Board for consideration of an upgrade.  The Board does not automatically upgrade a discharge after six months.  Relief denied.

The Applicant is claiming youth and immaturity as a contributing factor in his misconduct.  The statement contained in the application that the Applicant’s admission was due to his youth and immaturity was found to be insufficient justification to warrant a change in the reason for discharge.  Relief denied.

The Applicant is seeking an upgrade to re-enter into the National Guard.  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.

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.

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