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NAVY | DRB | 2002_Navy | ND02-00826
Original file (ND02-00826.rtf) Auto-classification: Denied


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


ex-AN, USNR
Docket No. ND02-00826

Applicant’s Request
The application for discharge review, received 020515, requested that the characterization of service on the discharge be changed to honorable, general/under honorable conditions or entry level separation (uncharacterized). The Applicant requested a personal appearance hearing review in the Washington National Capital Region. The Applicant did not designate a representative on the DD Form 293. In the acknowledgement letter to the Applicant, he 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 030214. 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, as submitted
Dear Sir/Madam:

 I am personally requesting to have my Reentry Code status upgraded to RE-1. I have enclosed a letter of understanding and gives the reasons why I am requesting the change.

Dear Naval Council of Personnel Boards:

My name is W_ N. C_ (Applicant) (SS# --- -- ----). On June 1996, I enlisted into the U.S. Navy and on January 1997 I made the biggest mistake of my life by leaving my duty station unauthorized (unauthorized absence) not only once but twice. I was unable to cope with the six months deployment and the U.S. Navy lifestyle. I was young and foolish and made foolish decisions.

On May 1997, I was discharge from the U.S. Navy "Under Other Than Honorable Conditions" and with the Re-entry code of RE-4. I'm now 25 years old and regretting the decisions I made. I have a family now, with 2 children.

I am personally requesting if I could be reenlisted into the Armed Forces under the branch of the U.S. Air Force or change my Reentry Status on my Discharge to Reentry Code of RE-1A or RE-1P. The U.S. Air Force will not accept anything other than RE-1. I would love to have another chance into the Armed Forces as a fresh start. I will continue to serve the country for its cause and continue my education.

Sincerely, (Signed by the Applicant)

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copies of DD Form 214 (Copy 1 and 4)
Applicant's ltr to the Board dtd May 2, 2002
 Applicant's handwritten ltr to the Board undtd
 Applicant's ltr to the Board dtd Sep 17, 2002 forwarding his résumé
Applicant's résumé (3 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
          Active: None
Period of Service Under Review :
Date of Enlistment: 950707               Date of Discharge: 970515

 Length of Service (years, months, days):
         Active: 00 10 25 (Doesn't exclude lost time.)
          Inactive: 00 11 14
Age at Entry: 18                          Years Contracted: 8

 Education Level: 12                        AFQT: 36
Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*                 Behavior: NMF             OTA: NMF
Military Decorations: None

 Unit/Campaign/Service Awards: None
Days of Unauthorized Absence: 59
*No Marks Found in service record.
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 3630650.

 Chronological Listing of Significant Service Events :

960620:  Commenced 36 months of active duty under the 3 Year Obligor Seaman Apprenticeship Training Program.
970102:  Unauthorized absence since 0730, 97JAN02 from USS NASSAU
                  (LHA 4).
970214:  Apprehended by military authority at 1600, 97FEB14. Transferred to TPU Norfolk, VA at 1715, 97FEB14 (42 days). Charges pending, retained on board TPU Norfolk for disciplinary action.
970217:  Unauthorized absence since 2300, 97FEB17 from USS NASSAU
(LHA 4).
970223:  Report of Declaration of Desertion. Declared deserter on 21 Feb 97 having been an unauthorized absentee since 2300, 17 Feb 97 from the USS NASSAU (LHA 4).
970306:  Medical Examination for Brig Confinement: Considered fit for confinement.

 970306:  Pre-trial confinement.
970307:  Report of Return of Deserter. Apprehended by military authority at 1420, 6 Mar 97 at Norfolk, VA and returned to military control 1445, 6 Mar 97 at TPU Norfolk, VA (17 days).

970505:  Charges preferred to court-martial for violation of the Uniform Code of Military Justice (UCMJ), Article 86 (2 Specs): Unauthorized absence (UA) from 97JAN02 to 97FEB14 and 97FEB17 to 97MAR06.
970505:  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 UCMJ, Article 86 (2 specs) - unauthorized absence. 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.

970506:  The Commanding Officer, TPU, Norfolk, VA, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge under other than honorable conditions.

 PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 970515 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. Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Relief is therefore 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 is evident 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), Change 14, effective
03 Oct 96 until 11 Dec 97, 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, 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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