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NAVY | DRB | 2003_Navy | ND03-01414
Original file (ND03-01414.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND03-01414

Applicant’s Request
The application for discharge review was received on 20030827. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions or entry level separation or uncharacterized. The Applicant requests a personal appearance hearing review before the Board in the Washington National Capital Region. The Applicant listed Disabled American Veterans as the representative on the DD Form 293.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 20040518. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. 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 stated

Issues submitted by Applicant’s counsel/representative ( DISABLED AMERICAN VETERANS):
“1. Upgrade of Other Than Honorable discharge to that of Honorable based on post-service activities and character information submitted in support of equitable relief.

2. Upgrade of Other Than Honorable discharge to that of General Under Honorable Conditions based on post-service activities and character information submitted in support of equitable relief.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Entry Level and Defective Enlistment Military Clause dated November 14, 2000
Statement from Applicant dated November 15, 2000 (3 pp.)
Letter from Attorney dated March 14, 2001
Statement from Applicant dated November 15, 2000
Letter from Applicant dated November 15, 2000
Letter from United States Senator dated March 21, 2001
Letter from Senator, State of New York dated February 26, 2001
Letter from Assemblyman dated February 16, 2001
Letter from Suffolk County Executive dated February 6, 2001
Letter from the Office of Supervisor dated February 23, 2001
Letter from Applicant’s Mother to Senator H_ R. C_
Computer Print Out (Change of Command)
Letter from Parents dated January 8, 2001
Letter to CO of USS Dubuque (LPD-8) from Senior Attorney dated February 1, 2001
Letter from Applicant’s father dated February 12, 2001
Letter from Applicant’s grandmother dated February 1, 2001
Letter from Applicant’s aunt dated February 2, 2001
Letter from J_ A. L_
Letter from Applicant’s grandfather to CO dated February 2, 2001
Letter from P_ F. N_ to CO dated February 6, 2001
Letter from Applicant’s uncle dated February 6, 2001
Letter from Applicant’s cousin to CO dated February 15, 2001
Letter from S_ M_ to CO
Letter from S_ and D_ G_ to CO dated February 1, 2001
Post Service Accomplishments Cover Letter
Computer Certification Information (4 pp.)
Letter of Acceptance into Bryant & Stratton College
Employer Information (2 pp.)
Error in official records discussion (4 pp.)
Memorandum from S_ B_, Esq.
Memorandum from N_ R_, Esq.
Two letters from W_ P_, Esq.
Memorandum from V_ V_, Maj (Ret), USA
Statement from Applicant regarding the Navy and Microsoft Certification
Microsoft Certified Certificates of Achievement (2)
University of Connecticut class schedule
College credit summary
Release from enrollment obligation
Letter of recommendation from M_ T_
Letter of recommendation from D_ L_
Letter of recommendation from L_ D_
Volunteer work reference letter from R. D_ S_
Letter of recommendation from H_ M_ III
Two letters of recommendation from Rev. W_ B_
Memorandum from D_ H_
Memorandum from J_ J. B_
Letter of recommendation from T_ C_
Letter of recommendation from M_ S_
Memorandum from J_ S. B_
Character statement from J_ C_
Character statement from M_ L_
Character statement from R_ N_, MA, MS, PT
Character statement from J_ L_, Sr.
Letter from United States Senator dated May 21, 2004
Letter from Applicant’s mother dated January 8, 2001
Letter from J_ A. M_-H_
Letter from Applicant’s uncle dated February 9, 2001
Letter to USN from R_ N_
Letter from L_ and S_ D_
Letter from Mr. and Mrs. R_ B_
Letter from A_ A_
Letter from D_ M_
Letter from J_ C_

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     000706 - 000723  COG

 Period of Service Under Review :
Date of Enlistment: 000724               Date of Discharge: 010608

 Length of Service (years, months, days):

         Active: 00 10 15
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 43

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA*        Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 36

*No Marks available for review

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 :

010517:  Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Unauthorized absence from 0700, 010410 until 1315, 010516 (36 days).

010517:  Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial. He waived his right to consult with counsel. 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 0700, 010410 until 1315, 010516 (36 days). 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.

010525:  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.
030107:  NDRB documentary record review Docket Number ND02-00587 conducted. Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010608 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 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 occurred 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, to enhance employment opportunities, or for 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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct. The Applicant’s evidence of post-service conduct that includes a list of academic achievements and professional certificates was found insufficient to mitigate the misconduct for which he was discharged. Relief denied.

 The Applicant is reminded that he may request a review of his case by the Board for Correction of Naval Records at 2 Navy Annex, Washington, DC 20370-5100.















 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective
11 Jul 2000 until 21 Aug 2002, 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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