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NAVY | DRB | 2002_Navy | ND02-00489
Original file (ND02-00489.rtf) Auto-classification: Denied


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

ex-FA, USN
Docket No. ND02-00489

Applicant’s Request
The application for discharge review, received 020305, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a documentary record discharge review. The Applicant listed Connecticut Dept of Veterans Affairs as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021206. 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/Separation in lieu of trial by court martial, authority: NAVMILPERSMAN, Article 3630650.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. My undesirable discharge was improper because, I was not in my right state of mind, due too a number of medical surgery and medications.

2. My undesirable discharge was improper because, the time listed being U.A. I was living on government grounds.

3. My discharge was improper because the time listed being U.A I was seeing the Navy doctor at a navy hospital the whole time.

4. My discharge was improper because I was under military control the time they listed me being U.A. and I was still receiving pay every two weeks.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     881102 - 890912  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 890913               Date of Discharge: 920707

 Length of Service (years, months, days):

         Active: 02 05 03
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 27

 Highest Rate: FA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NOB*                 Behavior: NOB             OTA: NOB

 Military Decorations: None

 Unit/Campaign/Service Awards: AFEM

 Days of Unauthorized Absence: 142

*No marks observed.

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

UNDER OTHER THAN HONORABLE CONDITIONS/Separation in lieu of trial by court martial, authority: NAVMILPERSMAN, Article 3630650.

 Chronological Listing of Significant Service Events :

900406:  Retention Warning: Advised of deficiency (Poor military performance, without authority, failure to go at the time prescribed to his appointed place of duty, to wit: mandatory night study, EN/A School), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900406:  NJP for violation of UCMJ, Article 86: (2 Specifications), failure to go to appointed place of duty; to wit: EN "A" mandatory night study on 900206 and 900320.
         Award: Forfeiture of $100.00 pay per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.
911019:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 911019 having been an unauthorized absentee since 0001, 910919 from USS INDEPENDENCE (CV-62).

920311:  Report of Return of Deserter. Applicant apprehended by civil authorities on 920309 (1540) at Victorville, CA. Returned to military control 920309 (1910). Delivered to TPU SAN DIEGO for DISPACT/DISPO on 920310.
920430:  Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Did on or about 910919, without authority, absent himself from his unit, to wit: USS INDEPENDENCE located at Yokosuka, Japan, and did remain so absent until apprehended on or about 920309 (142 days/Apprehended).
        
920506:  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 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 the UCMJ, Article: 86: Did on or about 910919, without authority, absent himself from his unit, to wit: USS INDEPENDENCE located at Yokosuka, Japan, and did remain so absent until apprehended on or about 920309 (142 days/Apprehended). 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.
920511:  The Commanding Officer, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed the Applicant’s discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 920707 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. The issue is without merit. The Applicant was evaluated by a medical doctor in June, 1992 who determined that he was capable of understanding the nature of the proceedings pending. Relief denied.

Issues 2-4. The issues are without merit. No matter where the Applicant was at the time of his UA, the Board found no indication he was at his place of duty. The 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 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. Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity occurred during the Applicant’s enlistment. Additionally, 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 civilian life, subsequent to leaving the service. Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his 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), effective 15 Aug 91 until
04 Mar 93, 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 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 “ afls14.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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