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NAVY | DRB | 2004_Navy | ND04-00433
Original file (ND04-00433.rtf) Auto-classification: Denied


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

ex-SA, USNR
Docket No. ND04-00433

Applicant’s Request
The application for discharge review was received on 20040121. The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions. The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20041015. 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 3630650.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “I am now 6 yrs married and I took on the responsibility of 4 kids that belong to my wife. We do have a child together so altogether we have 5 children. We are not on any state program and me and my wife do work. If there is any possible way that I could receive my benifits to get medical assistance because we don’t have any at this time. We are doing our best to buy a home and it’s hard. But we pray and hope you could grant our request. I’ve served my time and I believe that I am entitled to something. So I respectfully ask you to consider my family in your decision making process. Thank you and may God Bless 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)     None
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 910711               Date of Discharge: 960206

 Length of Service (years, months, days):

         Active: 01 00 18 (Does not include lost time)
         Inactive: 00 02 14

 Age at Entry: 18                          Years Contracted: 8

 Education Level: 12                        AFQT: 37

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA*        Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM

 Days of Unauthorized Absence: 1194

*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 3630650.

 Chronological Listing of Significant Service Events :

910925:  Commenced 2 year of active duty under the Seaman Apprenticeship program.

920622:  UA from USS CONCORD [AFS-6] at Norfolk, VA 0630, 920622.

920623:  Surrendered onboard USS CONCORD [AFS-6] at Norfolk, VA 0630, 920623.

921002:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 920929 having been an unauthorized absentee since 2359, 920830 from USS SYLVANIA [AFS-2).

951214:  Report of Return of Deserter. Applicant apprehended by civil authorities on 951207 (1600) at Baltimore, MD. Returned to military control 951208 (1500). Retained onboard for disciplinary action/disposition.

960206:  Applicant discharged under other than honorable conditions by reason of separation in lieu of trial by court-martial.

Complete discharge package unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960206 under other than honorable conditions in lieu of a trial by court-martial (A and B). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this, the Board found that the discharge was proper and equitable (C and D). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (E).

Issue 1: Normally, to permit relief, an impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety or inequity after a review of Applicant’s case. When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. An under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. The Applicant’s service was marred by an unauthorized absence of 1,194 days which resulted in his accepting a separation in lieu of court-martial. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

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 naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any documentation for the Board to consider. Relief denied.

The Applicant is informed that there is no law or regulation that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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 9, effective
22 Jul 94 until 2 Oct 96, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR SEPARATION IN LIEU OF TRIAL BY COURTMARTIAL.

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 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D. 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.
E. 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.

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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