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NAVY | DRB | 2004_Navy | ND04-00245
Original file (ND04-00245.rtf) Auto-classification: Denied


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

ex-SHSR, USN
Docket No. ND04-00245

Applicant’s Request
The application for discharge review was received on 20031121. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. 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 20040728. 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:

Yes, I would please like to have a discharge upgrade from improper procedures and false charges. I was told to wait 6 months and my discharge would change into Honorable. An am I eligible for any of my benefits now, and what may I qualify for, school, re-entry medical, housing. Can I please be notify with the proper information.

 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):
         Active: USN                        None
         Inactive: USNR (DEP)     010919 - 010927  COG

 Period of Service Under Review :
Date of Enlistment: 010928               Date of Discharge: 020503

 Length of Service (years, months, days):

         Active: 00 07 06
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 49

 Highest Rate: SHSR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA*                 Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

*No Marks made 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 :

020402:  Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86: (4 Specifications) , Unauthorized absence; Specification 1 : On or about 020228, until on or about 020301, I absented myself from my unit; Specification 2 : On or about 020317, I absented myself from my appointed place of duty; Specification 3 : On or about 020322, I absented myself from my appointed place of duty; Specification 4 : On or about 020308, until on or about 020312, I absented myself from my unit; Article 91: Disrespect, on or about 020322, I was disrespectful in language towards Aviation Maintenance Administrationman Third Class L_ G. S_; Article 92: (4 Specifications) , Failure to obey a lawful order; Specification 1 : On or about 020315, I failed to obey a lawful order by wearing civilian clothes while in a restriction status; Specification 2 : On or about 020423, I failed to obey a lawful order by consuming alcoholic beverages while in a restriction status; Specification 3 : On or about 020315, I failed to obey a lawful order by having in my possession a cellular telephone while in a restriction status; Specification 4 : On or about 020323, I failed to obey a lawful order by wearing civilian clothes while in a restriction status; Article 128: Assault, on or about 020316, I assaulted AMAC F_ B_, USN, by walking toward him in a threatening manner.

020415:  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: (4 Specifications) , Unauthorized absence; Specification 1 : On or about 020228, until on or about 020301, I absented myself from my unit; Specification 2 : On or about 020317, I absented myself from my appointed place of duty; Specification 3 : On or about 020322, I absented myself from my appointed place of duty; Specification 4 : On or about 020308, until on or about 020312, I absented myself from my unit; Article 91: Disrespect, on or about 020322, I was disrespectful in language towards Aviation Maintenance Administrationman Third Class L_ G. S_; Article 92: (4 Specifications) , Failure to obey a lawful order; Specification 1 : On or about 020315, I failed to obey a lawful order by wearing civilian clothes while in a restriction status; Specification 2 : On or about 020423, I failed to obey a lawful order by consuming alcoholic beverages while in a restriction status; Specification 3 : On or about 020315, I failed to obey a lawful order by having in my possession a cellular telephone while in a restriction status; Specification 4 : On or about 020323, I failed to obey a lawful order by wearing civilian clothes while in a restriction status; Article 128: Assault, on or about 020316, I assaulted AMAC F_ B_, USN, by walking toward him in a threatening manner. 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.

020423:  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 available 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 20020415, the Applicant requested discharge for the good of the service to escape trial by court-martial. In the request the Applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he was guilty of the offenses. He further certified a complete understanding of the negative consequences of his actions and that characterization of service could be under other than honorable conditions. 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 Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB). There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits and this issue does not serve to provide foundation upon which the Board can grant relief.

Concerning a change in reenlistment code, 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.

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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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 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 [e.g., 92, Failure to obey a lawful order] 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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