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NAVY | DRB | 2002_Navy | ND02-00017
Original file (ND02-00017.rtf) Auto-classification: Denied


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

ex-SN, USN
Docket No. ND02-00017

Applicant’s Request
The application for discharge review, received 010927, requested that the characterization of service on the discharge be changed to entry level separation or uncharacterized. The applicant requested a personal appearance hearing discharge review before a traveling panel closest to Little Rock, Arkansas. The applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area. The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020517. 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. Ineffective waiver granted February 29, 2000.

2. No preliminary "high profile" background investigation performed prior to February 28 departure for Great Lakes NTC.

3. Attending Law School in the fall of 2001

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Personal statement
Letter from attorney at law dated November 30, 2000
Copy of Official Undergraduate Academic Record
Copy of DD Form 214
Copy of waiver dated February 29, 2000
Copy of three pages from applicant's service record
Letter to Captain dated April 11, 2000
Letter from Recruit Training Command to Senator dated June 7, 2000
Fax sheet with letter to Senator undated
Copy of authorization
Copy of letter to Secretary of Navy dated June 12, 2000 with attachments
Copy of LSAC correction form dated November 6, 2000

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     000203 - 000227  COG

 Period of Service Under Review :
Date of Enlistment: 000228               Date of Discharge: 000914

 Length of Service (years, months, days):

         Active: 00 06 17
         Inactive: None

 Age at Entry: 27                          Years Contracted: 4

 Education Level: 16                        AFQT: 75

 Highest Rate: SN

 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: 63

 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 :

000229:  You are being retained in the Naval service, despite your fraudulent induction as evidenced by your failure to disclose required basic enlistment eligibility information. This decision is based on the information you provided the Recruit Quality Assurance Interviewer and if it is found that additional information has not been disclosed, this waiver is void and you could be subject to other judicial or administrative proceedings, ie., marijuana (20X), 8/94-6/97; hallucinogens (acid, 1X), 5/91, program waiver for experimental use of marijuana over 6 months ago and an hallucinogen over 2 years ago has been granted on 2/29/90 for enlistment in "IS" program.

000829:  Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Unauthorized absence (UA) from 0600, 26Jun00 to 1723, 28Aug00 (63 days/surrendered).

UNDATED:         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 (UA) from 0600, 26Jun00 to 1723, 28Aug00 (63 days/surrendered). 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.

000830:  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 000914 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).

 Issue 1 states, “Ineffective waiver granted February 29, 2000.” The NDRB reviewed the applicant’s service record and found the applicant lied about his prior service drug use. After reporting on active duty the applicant admitted his drug usage. The applicant was allowed to continue training and was granted a waiver for his illegal drug use, to allow him to enter the “IS” rating on 000229. The waiver was voided as a result of the applicant’s 63 days of unauthorized absence. The applicant accepted an Other Than Honorable discharge In Lieu of Trial By Court Martial. Relief based on this issue is not warranted.

Issue 2 issue states, “No preliminary "high profile" background investigation performed prior to February 28 departure for Great Lakes NTC.” The Board determined this issue has no merit. The applicant was discharged for 63 days of unauthorized absence and not his prior service illegal drug use. The Board found the discharge was proper and equitable. Relief is denied.

Issue 3 states, “Attending Law School in the fall of 2001.” 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 fact that the applicant is attending Law School alone is not enough for the Board to grant relief. The applicant failed to provide sufficient documentary evidence to warrant an upgrade to his discharge. The discharge was proper and equitable. Relief is denied.

The applicant is eligible for a personal appearance hearing provided the application is received within 15 years from the date of 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 29, effective
11 Jul 2000 until Present, 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 5420.174C 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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