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NAVY | DRB | 2004_Navy | ND04-00107
Original file (ND04-00107.rtf) Auto-classification: Denied


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

ex-MMFN, USN
Docket No. ND04-00107

Applicant’s Request
The application for discharge review was received on 20031024. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests 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 20040715. 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

Applicant’s issues, as stated on the application:

 1. “This request is made to rectify a problem not solely on my behalf. As explained on the continuing page, some circumstances were even out of my commands control. At the time I was shipped from Great Lakes, Illinois to Norfolk, Virginia I arrived a week and a half early (on personal leave). Since there was no service-related housing available I was forced to live off my own funds (credit cards). I was not reimbursed for travel expenses (even though I filled out the appropriate paper work) and I ended up living out of my vehicle with my wife and child. When this was brought to the attention of my commanding officer he ordered my family to return to Minnesota. My only choice was to stay with the Navy or take care of my destitute family. I chose the latter. Considered an AWOL but there was no other practical solution for me.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Letter from Applicant
One page from Applicant’s service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     000530 - 001015  COG

 Period of Service Under Review :
Date of Enlistment: 001016               Date of Discharge: 020503

 Length of Service (years, months, days):

         Active: 00 06 07         (Does not include lost time)
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

 Education Level: 10                        AFQT: 70

 Highest Rate: MMFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 None
Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 375

 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 :

020417:  Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial. He declined to consult with counsel. The Applicant stated he understood the elements of the offense with which he was charged, and admitted he was guilty of the charge preferred against him. Specifically, he admitted to violating UCMJ, Article 86: UA from Pre-commissioning Unit Ronald Reagan from 0700, 010405 to 0915, 020416/A. 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.
020426:  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 20020503 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. On 2002041 7, the Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial. The Applicant stated he understood the elements of the offense with which he was charged, and admitted he was guilty of the charge preferred against him. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. 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), 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 maybe 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 5420.1 74C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (I), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D. Secretary of the Navy Instruction 5420.1 74C 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      



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, states:
          _____________________________________________________
Responsible      BUPERS (Pers-83) Phone: DSN 882-4438
                                                      COM (901)874-4438
                                                      FAX 822-2624
         ________________________________________________________

 Governing         Manual for Courts-Martial
 Directive        BUPERSINST 1900.8
          ________________________________________________________

 Policy    Members may request separation in lieu of a trial by court-martial if:

•         the preferred charges could result in a punitive discharge per the Maximum Punishment Chart, Appendix 12, Manual for Courts-Martial; and
•         the commanding officer determines that the member is unqualified for further service.
 ________________________________________________________
 Request For       Members requesting a discharge should submit a signed request in
Separation        proper letter format. When counsel is consulted, the counsel's signature is required as well. The following is the proper format:

         From: (rate, name, branch of service, social security number)
         To: (GCMCA/SPCMC (as appropriate) having jurisdiction over
The member)
         Via: (commanding officer)

         Subj: REQUEST FOR SEPARATION IN LIEU OF TRIAL BY
COURT-MARTIAL

         Ref: (a) MILPERSMAN 1910-106

         Encl: (1) Copy of court-marital charges
                  (2) Copy of a summary of the evidence or list of documents
provided to member
         (3) Member's statement (if applicable)
         (4) Appointed counsel statement (if applicable)

         1. Per reference (a), I fully understand the elements of the offense(s) charged in enclosure (1), and I hereby voluntarily submit this request free from any duress or promises of any kind for separation in lieu of trial by court-martial.

         2. I have been afforded an opportunity to consult with counsel and I: (initial as appropriate)

         ( ) did consult with counsel.

         ( ) waive my right to consult with counsel.

         3. 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).

         4. I understand that if my discharge is Under Other Than Honorable Conditions, it 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 of discharge received therefrom may have a bearing.

         5. 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 court-martial except as provided by Military Rule of Evidence 410. I (do/do not) desire to submit a (sworn/unsworn) statement. (If applicable add the following) My sworn/unsworn) statement is submitted as enclosure (3).

         6. I have retained a copy of this request for separation in lieu of trial by court martial including all enclosures.

                                                               __________________
                                                               signature of member

         Witnessed: (signature of counsel(s)
         name, grade, corps, branch of service
                  name and address of civilian counsel (if applicable)
         state licensed/date)
        
         If the member elects to have civilian counsel at member's own expense, the record shall indicate the name, address, and qualification of the civilian counsel.

         RULE: If the member waives the right to consult with counsel, the command shall,
        
•         prepare a statement to this effect which shall be enclosed; and
•         disregard completing the witness block area.
SPCMCAs may approve requests for members who have been absent without leave for more than 30 days, dropped from the rolls of their parent unit as a deserter, returned to military control, and assigned to a separation processing activity; however, the member can only be charged with the UA of more than 30 days. If other charges are preferred, and not dismissed by the Convening Authority, separation per this article must be referred to a GCMCA.

Since separation in lieu of court-martial is based on the voluntary request of the member and is considered comparable to a plea bargain, it may be approved even after the member's expiration of active obligated service (EAOS)/expiration of service (EOS).
          _______________________________________________________

 Characterization          GCMCA/SPCMCA determines characterization of service which is
 of Service        normally OTH. However, General (Under Honorable Conditions) or Entry Level Separation (ELS) may be assigned, as appropriate.
•         Honorable characterization is not authorized under this reason for processing.
•         See MILPERSMAN 1910-300 for characterization guidance.
•         If the member has less than 180 days of service, an ELS may be appropriate. See MILPERSMAN 1910-308.
•         A Separation Program Designator (SPD) of KFS must be assigned per BUPERSINST 1900.8
          ________________________________________________________

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