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Docket No. ND06-00787

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

FOR OFFICIAL USE ONLY

ex-MMFN, USN
Docket No. ND06-00787

Applicant’s Request

The application for discharge review was received on 20060523.  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 20070322.  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.

The NDRB did note administrative error(s) on the original DD Form 214.  Block 12c, Net Active Service This Period, should read:  “00 09 10,” and Block 29, Dates of Time Lost During This Period, should read:  “98DEC18 TO 98DEC23, 99FEB09 TO 99MAY03.”  The Commander, Navy Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - ISSUES AND DOCUMENTATION

Applicant Issues

The Applicant is requesting a characterization discharge change to honorable.  

The Applicant is claiming quality of service.  He claims his mistakes was one incident of U/A during his time in service.

The Applicant is requesting a RE-code change so that he can reenlist.

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214 (previous enlistment) (Service 2)
Applicant’s DD Form 214 (Service 2)
Statement from Applicant, undated
Character Reference ltr from J_ W. S_, undated
Character Reference ltr from S_ G_, undated
Character Reference ltr from T_ G_, undated
Character Reference ltr from J_ E. G_, undated
Character Reference ltr from R_ A_, undated
Character Reference ltr from R_ L. S_, undated
Character Reference ltr from R_ S_, undated

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19931130 - 19940613	COG
	Active:   USNR	19940614 - 19980513	HON

Period of Service Under Review:

Date of Enlistment:  19980514		Date of Discharge:  19990617

Length of Service (years, months, days):

	Active:    01  01  04  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  90 days
	Confinement:		  None

Age at Entry:  21

Years Contracted:  4

Education Level:  12				AFQT:  55

Highest Rate:  MMFN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.0 (1)			Behavior:  1.0 (1)		OTA:  1.67

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Navy “E” Ribbon

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: 

980514:	Reenlisted this date for a term of 4 years.

990116:	NJP for violation of UCMJ, Article 86:  UA from 981218 until 981223.
	Award:  Forfeiture of $200.00 per month for 1 month, restriction for 10 days.  No indication of appeal in the record.

990209:	Applicant to unauthorized absence.

990504:	Applicant from unauthorized absence (90 days).  [Extracted from Evaluation Report and Counseling Record.]

990504:	Applicant found fit for confinement.  Detained for Article 128: Assault by spraying lighter fluid on SA.

990504:	Applicant to confinement.  [Extracted from Evaluation Report and Counseling Record.]

990603:	Applicant released from confinement.  [Extracted from Evaluation Report and Counseling Record.]

990617:	DD Form 214:  Applicant discharged under other than honorable conditions in lieu of trial by court-martial, authority:  MILPERSMAN 1910-106.

Service Record did not contain the Administrative Discharge package. 

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990617 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).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a discharge package (E).  

The Applicant is requesting a characterization discharge change to honorable.  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 one nonjudicial punishment proceeding for violation of Article 86 (Unauthorized absence) of the UCMJ.  Additionally, the record reflects the Applicant committed additional misconduct by being in an unauthorized absence status for more than 30 days from 19990209 until 19990504.  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 is claiming quality of service.  He claims his mistake was one incident of unauthorized absence during his time in service.  The Board disagrees with the Applicant's contention that the discharge was inequitable.  After reviewing the Applicant's entire service record, the Board found that the characterization of the Applicant's discharge as other than honorable was equitable and consistent with the characterization of discharge given others in similar circumstances.  Relief is not warranted.

The Applicant is requesting a RE-code change so that he can reenlist.  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), 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 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