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NAVY | DRB | 2002_Navy | ND02-01078
Original file (ND02-01078.rtf) Auto-classification: Denied


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

ex-FR, USN
Docket No. ND02-01078

Applicant’s Request
The application for discharge review, received 020726, requested that the characterization of service on the discharge be changed to general/under honorable conditions. 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 030424. 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, as submitted

 1. I would like this upgrade based on the fact that I feel as though I deserve it. I s accused of a serious crime I didn't commit that would be in my records. I fought these charges for 9.5 months and all charges were dropped. During that period I was under more stress than I could handle and made wrong dissuasions that I do take responsibility for they were my choices and its nobodies fault but mine. But before those charges I was an A+ sailor. I did great in all my GSE courses and loved the military. I wish I were still in now. I would like to try it again I feel that I am a new man. Much stronger at 27 than at 20. I hope that after reviewing my reacted to the situation I was in. You might see fit to grant me this upgrade. Thank you

 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)     960224 - 960318  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 960319               Date of Discharge: 980219

 Length of Service (years, months, days):

         Active: 01 10 29
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 53

 Highest Rate: FA

 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: 73

* No Marks Found in the 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 1910-106 (formerly 3630650).

 Chronological Listing of Significant Service Events :

970220:  NJP for violation of UCMJ, Article 86: Unauthorized absence on 970209.
         Award: Forfeiture of $102 per month for 1 month, restriction and extra duty for 7 days. No indication of appeal in the record.
970508:  Applicant to unauthorized absence 0600, 970508.

970509:  Applicant from unauthorized absence 0600, 970509 (1 day/surrendered).

 971002:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence from 0600, 970513 to 0700, 970604 (22 days/surrendered).
         Charge II: violation of the UCMJ, Article 92:
         Specification: Derelict in the performance of duties on 970402.
         Finding: to Charge I and II and the specifications thereunder, guilty.
         Sentence: Forfeiture of $505.00, confinement for 30 days, reduction to FR.
         CA action 971016: Sentence approved and ordered executed.

971106:  Applicant to unauthorized absence 0600, 971106.

971117:  Applicant from unauthorized absence 0515, 971117 (11 days/surrendered).

971218:  Applicant to unauthorized absence 0600, 971218.

980120:  Applicant declared a deserter.

980126:  Applicant from unauthorized absence 1342, 980126 (39 days/surrendered).

980212:  Separation Examination: Applicant qualified for separation.

980219:  DD Form 214: Applicant discharged under other than honorable conditions in lieu of a trial by court-martial, authority: NAVMILPERSMAN, Article 3630650.

Separation package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 980219 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. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor. T he Applicant’s service was marred by award of one nonjudicial punishment, one summary court-martial, and an unauthorized absence for a period more than 30 days . The Applicant requested separation under other than honorable conditions in lieu of a trial by court-martial and was made aware of the consequences of his request. While he may feel that stress was a factor that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

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 denied.

 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 18, effective
12 Dec 1997 until 10 July 2000, 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 “ 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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