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NAVY | DRB | 2002_Navy | ND02-00875
Original file (ND02-00875.rtf) Auto-classification: Denied


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


ex-FA, USN
Docket No. ND02-00875

Applicant’s Request
The application for discharge review, received 020606, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a documentary record discharge review. The Applicant did not list any representative on the DD Form 293. Subsequent to the application, the Applicant obtained the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030228. 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. Applicant discharged in absentia.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as submitted

 1. The year prior to my discharge, my father had past away! Due to the hardships of my family I had no other alternatives but to accept discharge granted to me at the time.
 Please review service record. Hopefully you will upgrade my Discharge. If you need a death certificate to see when my father past away in 1992, I will be glad to locate and submit to the Board! This I humble and respectfully request,

2. Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application. His records were reviewed on 9/25/02 and the following comments are hereby submitted: We concur with the Applicant's contention that his discharge be upgrade to Honorable. His emergency family situation played a role in him going UA.

We refer this case to the Board for their careful and compassionate consideration and request the Applicant's discharge be reviewed for upgrading his discharge from other than honorable condition to Honorable.

 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):
         Inactive: USNR (DEP)     900323 - 900709  COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 900710               Date of Discharge: 930212

 Length of Service (years, months, days):
         Active: 02 07 03
          Inactive: None

 Age at Entry: 19                          Years Contracted: 4
Education Level: 12                        AFQT: 48/42

 Highest Rate: FA
Final Enlisted Performance Evaluation Averages (number of marks):

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

 Unit/Campaign/Service Awards: NDSM
Days of Unauthorized Absence: 219

 *No Marks Found in the service record.
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. Applicant discharged in absentia.

 Chronological Listing of Significant Service Events :

920607:  Applicant declared a deserter.
921201:  Applicant surrendered to TPU NAVSTA Long Beach, CA on 1300, 921129.
921207:  Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Unauthorized absence (UA) from 0730, 920508 to 1300, 921129 (205 days/surrendered).
921221:  Applicant to unauthorized absence 0730, 921221.

 930104:  Applicant from unauthorized absence 1640, 930104 (14 days/surrendered).
930105:  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: Unauthorized absence 0730, 920508 to 1300, 921129 (205 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.

930107:  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 her/his defense. Applicant is fit for duty and should be held responsible for his actions.
930112:  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, in absentia, on 930212 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).
Issues 1 and 2. The Board found that the Applicant’s family situation at the time does not mitigate his misconduct sufficiently to warrant an upgrade to his discharge. The Applicant requested an administrative discharge under other than honorable conditions in lieu of a trail by court-martial on 930105. He consulted with counsel and was fully advised of the implications of his request. Relief denied.
The Applicant’s discharge characterization accurately reflects his service to his country. 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), 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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