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NAVY | DRB | 2004_Navy | ND04-00653
Original file (ND04-00653.rtf) Auto-classification: Denied


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

ex-AO3, USN
Docket No. ND04-00653

Applicant’s Request
The application for discharge review was received on 20040309. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. 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 20041222. 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. “After ten years of service, I experienced tragedy my mother died March 99 and my daughter died May 99 needless to say I was distraught dealing w/ Grief I have children and I need a Honorable Discharge to change our Quality of Life. We are Homeless verification of this also has been enclosed I would like to join the Reserves unable to do so w/ RE-4 The Death of my mother and daughter tore my Family apart. I was not a bad sailor just experienced tragedy. I ask you to upgrade my discharge so, I can move on. I will be 35 27 Aug 04 I will not be able to go back in or join Reserves unless this is taken care of.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Notarized letter from Harris Funeral Home, dated 07 Feb 2004
Letter from Family Services Shelter, dated 03 Mar 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     890817 - 891020  COG
         Active: USN                        891021 - 930831  HON

 Period of Service Under Review :
Date of Enlistment: 930901               Date of Discharge: 000126

 Length of Service (years, months, days):

         Active: 06 04 25
         Inactive: None

 Age at Entry: 24                          Years Contracted: 4 (26 months extension)

 Education Level: 12                        AFQT: 59

 Highest Rate: AO3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.98 (4)    Behavior: 3.98 (4)                OTA: 3.85

 Military Decorations: None

 Unit/Campaign/Service Awards: NER, GCM (2), NDSM, CGSOSR, SSDR, NMCOSR

 Days of Unauthorized Absence: 59

 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 :

930901:  Applicant reenlists for a period of 4 years. The Applicant’s EAOS is 970831.
960615:  Applicant agrees to extend current enlistment 14 months. The Applicant’s new EAOS is 981031.
971110:  Applicant agrees to further extend enlistment 12 months. The Applicant’s new EAOS is 991031
990208:  Applicant requests humanitarian reassignment in the North Carolina area as a result of the critical illness of her mother.

990216:  Commanding Officer, Naval Station San Diego positively endorses Applicant’s request for humanitarian reassignment.

990301:  BUPERS approves the Applicant’s request for humanitarian reassignment. Applicant is transferred to Naval and Marine Corps Reserve Center, Charlotte, NC.

991116:  Applicant commences a period of unauthorized absence.

000114:  Applicant apprehended by civil authorities on 991220, returned to military control this date.

000120:  Applicant completes separation physical.

000121:  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.

 Complete discharge package unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000126 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 case, 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 existed during the period of enlistment in question. No such impropriety or inequity is evident during the Applicant’s enlistment. In the absence of a complete discharge package, the Board presumed regularity of governmental affairs. Therefore, the Board presumed the Applicant requested discharge to escape trial by court-martial, had the elements of the offense for which she was charged fully explained by counsel, that she was guilty of the offense and that she had a complete understanding of the negative consequences of her actions. The evidence of record does not demonstrate that the Applicant was not responsible for her misconduct or that she should not be held accountable for her actions. Relief denied.

While not raised by the Applicant, the Board noted that the Applicant’s misconduct began after the apparent expiration of her obligated active service. Naval regulations allow for a member to be held involuntarily beyond their EAOS for a myriad of reasons, including to complete standard out-processing that is normally to the benefit of the member. Absent substantial and credible evidence to the contrary, the government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears this burden of producing substantial and credible evidence to rebut the government’s presumption of regularity. As such, although the record is unclear as to why the Applicant may have initially been held beyond her EAOS, the Board can presume that this extension was regular and proper. The Applicant has not raised this as an issue, nor has she provided any evidence to show this Board that she was improperly extended beyond her EAOS. Relief denied.

 The Applicant contends her disciplinary problems were the result of grief caused by the death of both her mother and daughter. The NDRB recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that many members of the Navy experience similar hardships to those of the Applicant. Nevertheless the vast majority of these sailors still serve honorably through tremendous hardship and therefore earn their honorable discharges. In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving sailors receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. Relief denied.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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. 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 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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .
E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, 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 “ http://Boards.law.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:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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