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NAVY | DRB | 2001_Navy | ND01-00477
Original file (ND01-00477.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND01-00477

Applicant’s Request
The application for discharge review, received 010306, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010907. 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 1910-106 (formerly 3630650).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. The Navy allows you one hundred and twenty (120) days to change your mind about fulfilling your contractual obligation to the military. I clearly stayed within those parameters when I decided to originally leave the military. Approximately one month after boot camp I decided that the Navy was not for me at the present time. I spoke to many barrack officers, Chief Petty Officers of my school (Tech-Core of Great Lakes, IL) and a psychiatrist at MHU (His evaluation of me was clinical home-sick since in reviewing my school grades he saw such high marks), Chaplin and the Legal Department. Everyone of the above outlined individuals informed that there was nothing that I could do in regards to my rights of a general discharge with honorable conditions (failure to adapt) within 120 days.

2. My mother called and spoke to the Chaplin of Great Lakes and the Chief of Tech-Core. They informed her that they would look into her concerns and come see me personally to talk. They came and spoke to me but again because I was doing so good in my school and it was of such high demand, I felt, that they didn't want to let me go.

3. Afterward, I decided to fulfill my contractual obligation to the Navy. I felt that I had no choice but to find strength within my spirit to stay and make this situation work. The Navy seemed to offer me many choices in the beginning for my life growth and now I felt that I had only one.

4. Shortly later in July, another student that lived in my barrack punched out a glass door (trying to be funny) and the glass shattered and contacted my middle finger and cut it severely. Needless to say, I was immediately sent to the hospital and had stitches put in my middle right finger. I was told that surgery was needed to re-attacking my tendon in my finger. Since the stitches were in my writing hand and I wasn't able to use it school became extremely difficult. One of the rules in the military regarding attendance is that if you miss two days in a row you are set back. This was not the course that I wanted to take so I intentionally would go to school every other day so I wouldn't be set back. My plan to stay active in school and keep good grades wasn't working. I was only able to receive half the information regarding my lessons and my grades dropped from a 93 average to an 82 average.

5. School was very competitive from the start but I was never intimidated by the competition. I knew the goal I had set for myself and I strived hard to achieve it. I was originally in the running for the highest female class average to get orders that I wanted. Due to my injury I was now last in class. After my surgery and leave of absence I was placed in a class that was approximately a week behind from where I originally left. I worked in the military advisors office until my new class reached where I had left off. In speaking with the military advisor I asked him "How does the military accept a person to make such a life altering decision when they really don't know what they are getting themselves into?". His response was "That is why you have 120 days to change your mind.

6. At this time my 120 days were now up, (keep in mind that I was originally informed that there was no such thing as that before when I tried to leave). Everything I had worked for and every goal that I set out to achieve had now slipped away. I was devastated, to say the least, and felt at this time that I had no choice but to leave. All the choices that were in my original vision of my life in the military were shattered.

7. Regardless of my discharge, I feel that I was injured during active duty and that deserves some kind of compensation.

 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: USN                        None
         Inactive: USNR (DEP)     971219 - 980202  COG

 Period of Service Under Review :
Date of Enlistment: 980203               Date of Discharge: 990311

 Length of Service (years, months, days):

         Active: 00 07 13
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 80

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA                  Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: 173

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 :

990222:  Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86:
         Unauthorized absence (UA) from 2315, 980901 to 1530, 980221 (173days/S).

990223:  A pplicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial. She waived her right to consult with counsel and was fully advised of the implications of her request. The applicant stated she understood the elements of the offense(s) with which she was charged, and admitted she was guilty of all the charges preferred against her. Specifically, she admitted to violating UCMJ, Article: 86: In that SA E___ L. J____, U.S. Navy Transient Personnel Unit, Great Lakes, IL, on active duty, on or about 2315, 980901, without authority, absent herself from her unit, to wit: Service School Command, located at Great Lakes, IL, and did remain so absent until on or about 1530, 990221. The applicant understood that if discharged under other than honorable conditions, it might deprive her of virtually all veterans' benefits based upon her current enlistment, and that she 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.

990224:  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 990311 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).

 The applicant’s first issue states: “The Navy allows you one hundred and twenty (120) days to change your mind about fulfilling your contractual obligation to the military. I clearly stayed within those parameters when I decided to originally leave the military. Approximately one month after boot camp I decided that the Navy was not for me at the present time. I spoke to many barrack officers, Chief Petty Officers of my school (Tech-Core of Great Lakes, IL) and a psychiatrist at MHU (His evaluation of me was clinical home-sick since in reviewing my school grades he saw such high marks), Chaplin and the Legal Department. Everyone of the above outlined individuals informed that there was nothing that I could do in regards to my rights of a general discharge with honorable conditions (failure to adapt) within 120 days.” The Board found this issue without merit. There is no law or regulation that allows an enlistee 120 days to change his/her mind about fulfilling his/her contractual obligation to the military. The applicant’s enlistment totaled 1 year, 1 month and 9 days, including 173 days of unauthorized absence. That means she was no longer in an entry-level status. Upon return to the Navy after 173 days of Unauthorized Absence, the applicant requested an Other Than Honorable discharge in order to escape a trial by court martial. The discharge was proper and equitable. Relief denied.

The applicant’s issues two through six discuss the circumstances surrounding her service. They introduced no decisional issues for which this Board may grant relief. No further comment is required.

The applicant’s seventh issue states: “Regardless of my discharge, I feel that I was injured during active duty and that deserves some kind of compensation.” The NDRB has no authority to authorize compensation for injuries that a former service member may have sustained while on active duty. The applicant will have to consult with the Veteran’s Administration for information concerning compensation for injuries sustained while on active duty. Relief is denied.

 The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. 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 the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, 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, may be considered by the NDRB. The applicant failed to provide documentary evidence to demonstrate her sobriety, positive community service, employment history, and clean police record. Relief is not warranted.

The applicant is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is recommended .


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 [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 view DoD Directive 1332.28 and other Decisional Documents by going online at “ afls10.jag.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:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023      


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