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NAVY | DRB | 2002_Navy | ND02-00942
Original file (ND02-00942.rtf) Auto-classification: Denied


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

ex-DA, USN
Docket No. ND02-00942

Applicant’s Request
The application for discharge review, received 020618, requested that the characterization of service on the discharge be changed to general/under honorable conditions or entry level separation or uncharacterized and the reason for the discharge be changed to RE-ENLIST TO ACTIVE DUTY. 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 030314. 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. Dear Sir or Madam:

I am writing you this letter to respectfully request to have my discharge upgraded so that I may re-enlist to active duty in the U.S. Navy. I do realize that a large amount of time has occur since my discharge but I do believe that you will take into consideration that I am not only requesting for an upgrade but I would also like to return to active duty.

I'm sure that my records will show that I have made immature and poor judgments in my past while serving in active duty. I have no one to fault but myself for the choices I made in the past and I do sincerely regret the decision I chose to take. In 1993 I took an other than honorable discharge in lieu of court martial while I was in the brig due to being a flight risk. At that time I was 6 months pregnant and thinking very irresponsibly, which granted is no excuse for the decisions I made at the time. I would like to state that I have acknowledge the actions I took and would like to apologize for the inconvenience which I may have caused to the Navy.

I have learned that the Navy had a lot to offer me, and if in anyway possible would like to reenlist in active duty as soon as possible so that I may show how in the past years I have matured and that I am a more responsible person for my actions. I am now a responsible person who knows what I want and what I need to do to get there. The Navy is where I belong, granted the civilian world has it's pros and cons, but I believe that the military has so much more to offer me than the civilian world and that I can be a better sailor if given a second chance to prove myself.

Once again, please accept my deepest apologies for my choices in the past. I have enclosed a few letters of commendation to show that I can be a good sailor if given the chance to return to active duty. Thank you for your consideration in this matter and I hope to hear from you soon regardless of the decision you make in this matter.

Sincerely,

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Job/character reference, dated April 11, 2002
Job/character reference, dated April 16, 2002
DD Form 149
Letter from County of Rockland Veteran ’ s Service Agency, dated November 27, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     900725 - 900826  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 900827               Date of Discharge: 930505

 Length of Service (years, months, days):

         Active: 02 08 09                  [Does not exclude lost time]
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 68

 Highest Rate: DA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (1)    Behavior: 3.40 (1)                OTA: 3.60

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, N&MCOSR, Letter of Commendation

 Days of Unauthorized Absence: 129

 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 :

910801:  NJP for violation of UCMJ, Article 86: Absence without leave, violation of UCMJ, Article 92: Failure to obey order or regulation.
         Award: Reduction in Rate to E-1, Forfeiture of $376 per month for 2 months (1 month suspended for 6 months), restriction for 60 days, and extra duty for 30 days. No indication of appeal in the record.
921116   Applicant to unauthorized absence from USS PRAIRIE.

921218   Applicant declared a deserter.

 930302   Applicant returned from unauthorized absence. Surrendered on board USS PRAIRIE.

930329:  Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86 (2 specs): Unauthorized absence from 0700, 951021 to 2003, 921115 (25 days/surrendered) and 0700, 921116 to 1400, 930301 (104 days/surrendered).

Undated:         Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial. She consulted 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: Unauthorized absence from 0700, 951021 to 2003, 921115 (25 days/surrendered) and 0700, 921116 to 1400, 930301 (104 days/surrendered). The Applicant stated she was completely satisfied with the counsel she had received. 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 there from may have a bearing.

930401   First Endorsement to Applicants request for Administrative Discharge states: DA M_ is pregnant and needs to conclude this episode and accordingly requests administrative separation in lieu of trial by court-martial.

930409   Staff Judge Advocate requests subject service member (Applicant) be evaluated to ensure her ability to understand charges and nature of proceedings pending.

930412:  Medical Examination: Psychiatric evaluation not required. Applicant evaluated by medical officer and found to be of normal mental status – no documented mental health/psychiatric illness in the past. Applicant understands the charges preferred against her and is capable in assisting in the preparation of her defense. Applicant is fit for duty and should be held responsible for her actions.

930426:  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 930505 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 Applicant requests her discharge be upgraded so she can re-enlist in the Navy. 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. Therefore, the Board cannot grant relief on this issue.

The Board’s charter limits its review to a determination on the propriety and equity of the discharge under review. In the Applicant’s case the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure of that expected of a sailor. The Applicant ’ s conduct falls far short of that required for an honorable characterization of service. The record is devoid of evidence that the Applicant was not responsible for her conduct or that she should not be held accountable for her actions. Relief denied.

 T here 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. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. Evidence of continuing educational pursuits, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. After a complete review of the record, including the evidence submitted by the Applicant, the Board determined that the Applicant’s discharge was proper and equitable and that her evidence of post service accomplishments, although commendable, was found not to mitigate the misconduct for which she was discharged. Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. 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 5, effective
05 Mar 93 until 21 Jul 94, 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      


RECORD OF VOTE


 BOARD MEMBER                       CHARACTER                 BASIS/REASON






T. WOODSON, COL, USMC    Relief not warranted              Relief not warranted
President





C. QUINLAN, LTCOL, USMC  Relief not warranted              Relief not warranted
Member






C. DORANTES, LT, USN              Relief not warranted              Relief not warranted
Member




J. HILTON, LT, USN                Relief not warranted              Relief not warranted
Member
N. PALUMBO, CDR, USNR    Relief not warranted              Relief not warranted
 Recorder


A. Naval Military Personnel Manual, (NAVPERS 15560C, Change 5, effective 05 Mar 93 until 21 Jul 94), Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR SEPARATION IN LIEU OF TRIAL BY COURTMARTIAL , states:

1. A member may be separated in lieu of trial by courtmartial upon the member's request if the charges have been preferred with respect to an offense for which a punitive discharge is authorized in the Maximum Punishment Chart, Appendix 12, Manual for CourtsMartial, 1984 and the member's commanding officer determines that the member is unqualified for further naval service under MILPERSMAN 3610260. This provision may not be used as a basis for separation when R.C.M. 1003(d) of the Manual for CourtsMartial provides the sole basis for a punitive discharge unless the charges have been referred to a courtmartial authorized to adjudge a punitive discharge.

2. A request for an administrative separation under Other Than Honorable conditions in lieu of trial by court-martial does not preclude or suspend disciplinary proceedings in a case. Whether such proceedings will be held in abeyance pending final action on a request for discharge is matter to be determined by the officer exercising general court-martial jurisdiction over the member concerned. As a condition precedent to approval of the request, the member, if serving in paygrade E-4 or above, must also request administrative reduction to paygrade of E-3. Upon approval of the request for separation in lieu of trial by court-martial, such member will be reduced to paygrade E-3 by his or her request.

3. Characterization. Normally Other Than Honorable Conditions. Where such a determination is made for a member in entry level status, and an Other Than Honorable characterization is not warranted by the circumstances of the case, separation shall be described as an Entry Level Separation.

4. Procedures

a. Members who indicate that they desire to submit a request under this article shall be given the opportunity to consult with qualified counsel. If members elect to have civilian counsel at their own expense, the record shall indicate the name, address, and qualification of the civilian counsel. If the member refuses to consult with counsel, the commanding officer shall prepare a statement to this effect which shall state that he or she waived the right to consult with counsel.

b. Members who request a discharge after consultation with counsel or after waiving the right to consult with counsel, shall personally sign the following in proper letter format (where a qualified counsel was consulted, counsel must also sign the request):

 From:    (Rate, name, branch and class of service, service number, social security number)
To:      (Officer exercising General Court-Martial Jurisdiction over the member)
Via:     Commanding Officer
Subj:    REQUEST FOR ADMINISTRATIVE DISCHARGE UNDER OTHER THAN HONORABLE CONDITIONS IN LIEU OF TRIAL BY COURT-MARTIAL
Ref:     (a) MILPERSMAN 3630650
Encl:    (1) Copy of CourtMartial Charges
 (2) Copy of a Summary of the Evidence or List of Documents Provided to Member
          (3) Statement (if applicable)
1. Under reference (a), I hereby request an administrative discharge Under Other Than Honorable Conditions in lieu of trial by court-martial under circumstances which could lead to a Bad Conduct or Dishonorable discharge. (Include if serving in pay grade E-4 or higher) I further request that I be administratively reduced to pay grade E-3.

2. I have consulted with (counsel's rank, name, corps, and branch of service, or if civilian, name, title and address) a member of the Bar in the State of (fill-in) who has fully advised me of the implications of such a request. The basis for my request for such discharge stems from my misconduct contained in the court-martial charges preferred against me as indicated in enclosure (1). I understand the elements of the offenses with which I am charged. I elect to be administratively discharged rather than be tried by court-martial. I am completely satisfied with the counsel I have received.

3. I understand that if this request is approved, characterization of my service as Other Than Honorable is authorized in my case and that I may in fact receive an administrative discharge Under Other Than Honorable Conditions. I understand that such discharge may deprive me of virtually all veterans' benefits based upon my current period of active service and that I may expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered in any branch of the Armed Forces or the character or discharge received therefrom may have a bearing.

4. I admit that I am guilty of: (list the offenses of which the member acknowledges guilt. These may be lesser included offenses which have been referred to a Special Court-Martial (SPCM) or General Court-Martial (GCM.) A summary of the evidence provided me pertaining to the offenses to which I acknowledge guilt is included in enclosure (2).

5. I understand that once this request is submitted it may only be withdrawn, whether or not accepted, with the consent of the officer exercising general court-martial convening authority (GCMCA) over me.

6. I understand that I may submit a sworn or unsworn statement in my behalf. I also understand that statements submitted by myself or by my counsel in connection with this request are not admissible against me in a courtmartial except as provided by Military Rule of Evidence 410. I (do/do not) desire to submit a (sworn/unsworn) statement. If applicable, my (sworn/unsworn) statement is submitted as enclosure (3).

7. This request is voluntarily submitted free from any duress or promises of any kind. I have asked my counsel, who has fully explained to me the implications of my request, to witness my signature.

8. I have retained a copy of this request for discharge in lieu of trial by courtmartial and all enclosures related thereto.

9. (Include if serving in pay grade E-4 or higher). I understand that if my request for discharge in lieu of trial by court-martial is approved, I will, following this request, be administratively reduced to pay grade E-3, effective the date that my request for discharge is approved.

                                                      ________________
                                                      member’s signature

Witnessed:       ( Signature of counsel )
                  Name, grade, corps, branch of service, state licensed/date

c. The request for discharge shall be forwarded via the chain of command to the officer exercising GCMA over the member concerned. The member's commanding officer shall recommend approval or disapproval with appropriate justification, certify the accuracy of the court-martial charges, and enclose the following in the forwarding endorsement:

(1) A report of medical examinations and either an opinion from the medical officer that a psychiatric evaluation is not warranted as part of the evaluation processing or a copy of the psychiatric evaluation. Referral to a psychiatrist shall be made only after examination by a medical officer. Such referral should be limited, in general, to those cases in which there is reasonable cause to question whether the member could appreciate the nature and quality or wrongfulness of the conduct at the time of the alleged offense and has sufficient mental capacity to understand the nature of the proceedings against the member.

(2) A complete copy of all reports of investigation or a summary of the evidence against the member.

(3) Any other pertinent information, reports, statements, etc. considered by the commanding officer in arriving at a recommendation.

d. The officer exercising GCMCA over the member is authorized to approve or disapprove requests for separation in lieu of trial by court-martial, to order such discharge executed, and to direct reduction to E-3 if the member is in a higher pay grade citing this article as authority. However, commanding officers authorized to convene SPCMs empowered to award punitive discharges may approve a discharge with an Other Than Honorable characterization for enlisted members who have been absent without authority for more than 30 days, have been declared deserters, have been returned to military control, and are charged only with unauthorized absence for more than 30 days (see Article 3610220.1i(2). The reason for discharge shall be separation in lieu of trial by court-martial. The member shall not be recommended for reenlistment.

 e. When final action has been taken on a request for separation in lieu of trial by court-martial, the original request with all enclosures and endorsements shall be sent to Pers-83 for inclusion in the member's permanent record.

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