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NAVY | DRB | 1999_Navy | ND99-01220
Original file (ND99-01220.rtf) Auto-classification: Denied


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

ex-AN, USN
Docket No. ND99-01220

Applicant’s Request
The application for discharge review, received 990920, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions. The applicant requested a personal appearance hearing before a traveling panel closest to Atlanta, GA. The applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.


 Decision

A documentary discharge review was conducted in Washington, D.C. on 000522. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. 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 TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 3630650.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. To board when I went AWOL I was home taking care of my mother because her life was in danger. When I turned myself in and went to court martial the judge heard my case he told my counsel that I had to plea not guilty due to dupress so due to the fact that the judge thinks I had a reason to go AWOL my discharge should be upgraded. If I have to I will even go to the reserves. I've been doing good since I've been out. I've held down a job with AT&T since 1990 Oct 28. I would really like to get my benefits so I can go to school and buy a house for my family. So please consider upgrading my discharge. Thank you


 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     920519 - 930111  COG

 Period of Service Under Review :
Date of Enlistment: 930112               Date of Discharge: 960423

 Length of Service (years, months, days):

         Active: 03 03 12
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 41

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.87 (3)    Behavior: 4.00 (3)                OTA: 3.87

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, BER

 Days of Unauthorized Absence: 296

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

 Chronological Listing of Significant Service Events :

940628:  Applicant to unauthorized absence 0600, 28Jun94.

 940630:  Applicant from unauthorized absence 0545, 30Jun94 (1 day/surrendered).

940715:  NJP no further information found in service record.
950424:  Missed sailing of vessel.

950524:  Applicant declared a deserter. Unauthorized absence since 0740, 24Apr95.
960214:  Applicant surrender from deserter status 0730, 14Feb96.

 960229:  Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Unauthorized absence (UA) from 24Apr95 until 14Feb96.

UNDATED:         Medical Examination: Applicant evaluated by medical officer and found to be of normal mental status – no documented mental health/psychiatric illness in the past. Psychiatric evaluation not required. Applicant understands the charges preferred against him and is capable in assisting in the preparation of his defense. Applicant is fit for duty and should be held responsible for his actions.

960415:  A pplicant 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 stated he understood the elements of the offense(s) with which he was charged, and admitted he was guilty of all the charges preferred against him. Specifically, he admitted to violating UCMJ, Article 86: Unauthorized absence from 24Apr95 until 14Feb96. The applicant stated he was completely satisfied with the counsel he had received. 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

960419:  The commanding officer, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed applicant’s discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 960423 under other than honorable conditions in lieu of a trial by court-martial (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

 In response to applicant’s issue 1, the Board found, after reviewing the applicant’s service record, that the applicant admitted being guilty of violating Article 86 of the UCMJ and requested an Other Than Honorable discharge in lieu of trial by court-martial. To permit relief, an error or injustice must be found to have existed during the period of enlistment under review. There was nothing in the records, nor did the applicant provide any documentation, to indicate there existed an error of fact, law, procedure, or discretion at the time of discharge. There was no rights violation and no basis for relief.

 There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in the civilian life subsequent to leaving the Service. However, the Board is authorized to consider post-service factors in the recharacterization of a discharge. Those factors include, but are not limited to, the following: evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group) and certification of non-involvement with civil authorities (police records check) in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided any documentation of good character and conduct. Therefore no relief will be granted. The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective
22 Jul 94 until 2 Oct 96, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR SEPARATION IN LIEU OF TRIAL BY COURTMARTIAL.

B. A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article [e.g., 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 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809

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:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  Washington Navy Yard
                  720 Kennon St SE Rm 309
                  Washington, D.C. 20374-5023     


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