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NAVY | DRB | 2002_Navy | ND02-01081
Original file (ND02-01081.rtf) Auto-classification: Denied


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

ex-SN, USN
Docket No. ND02-01081

Applicant’s Request
The application for discharge review, received 020726, requested that the characterization of service on the discharge be changed to entry level separation or uncharacterized. 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. To The Review Board:

My name is (Applicant); in January of 1999 I entered the U.S. Navy. Later that year I went UA with the intention of being released from the Navy. It is still difficult for me to explain my actions, all I can say is that I allowed myself to become demoralized and discouraged. I was young, immature, and did not use good judgment. I did not realize the gravity of my actions until I returned and was branded a deserter. After a very humbling discharge and almost three years to think about what I did I am now writing you to ask that you allow me to reenter the military specifically the U.S. Marine Corps. Sir/Ma'am I am a man that strongly believes in core values like honor, though by my actions a few years ago I have dishonored myself, my family, and my country. Please allow me to make right what I once did wrong. I believe there is no greater honor than to serve in this great nation's military, I have always believed ever since I was very young that I was born to serve this country by government service. I have carried this burden for a long time, and now even as I write this letter my brothers who I once left are fighting and dying for my freedom. I vow that if I am allowed to reenter the military that I will restore my honor and become an asset to the country. I understand that the life of a U.S. Marine is quite harder than the life I had in the Navy, but I believe that I will fit in better in the Marines and will be able to serve with people that have similar minds and goals. I know that as you are looking at my service record you may feel that I have no right to wear the uniform again based on my desertion, but I humbly ask you to grant me mercy and a little confidence and I will not disappoint you. If I am allowed back, I would plan to serve my country and government for the rest of my life. Regardless of your decision I thank you for taking the time to read my letter, but I pray that it will be to allow me to become a United States Marine.

Very Sincerely and Humbly,
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant's DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     980716 - 990125  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 990126               Date of Discharge: 000215

 Length of Service (years, months, days):

         Active: 01 00 20                  Does not exclude lost time
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 78

 Highest Rate: SN

 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: 116

 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 :

991027:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 990903 to 991005 (32 days).
         Award: Forfeiture of $585 per month for 2 months, restriction and extra duty for 45 days, reduction to SA. Restriction and extra duty for 15 days and reduction to SA suspended for 6 months. No indication of appeal in the record.
991027:  Retention Warning: Advised of deficiency (Unauthorized absence.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

991109   Applicant to unauthorized absence.

991213:  Applicant declared a deserter.

000201   Applicant surrendered.

000202:  Charges preferred to special court-martial [summary court-martial] for violation of the Uniform Code of Military Justice (UCMJ) Article 86:
         Unauthorized absence from 1515, 991109 to 1700, 000201
(84 days/surrendered).
000202:  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 from 1515, 991109 to 1700, 000201 (84 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.

000202:  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.

000207:  Medical Examination: Applicant is qualified for separation.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 000215 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 NDRB has no authority to make recommendations to permit reenlistment, reentry, or reinstatement into the naval service or any other branch of the Armed Forces, as requested by the Applicant. Furthermore, neither a less than 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.

Regulations limit the Board’s review to a consideration of the propriety and equity of a discharge. The Applicant’s discharge was proper and equitable and the Applicant does not warrant an entry level separation (ELS) or uncharacterized discharge as requested. By regulation, service members discharged within the first 180 days of enlistment are given a characterization of service of “Entry Level Separation.” Therefore, the Applicant does not qualify for an ELS. The Applicant’s summary of service clearly documents the reasons for the Applicant’s other than honorable characterization of service. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a sailor. T he Applicant’s conduct, which forms the primary basis for determining the character of service, reflects his disobedience of the orders and directives that regulate good order and discipline in the naval service. The Applicant claims he went UA due to his youth, immaturity and bad judgment. 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.

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. The Applicant failed to provide any post-service documentation. 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 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 [e.g., 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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