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NAVY | DRB | 2004_Navy | ND04-00860
Original file (ND04-00860.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND04-00860

Applicant’s Request
The application for discharge review was received on 20040427. The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the narrative reason changed to defective enlistment and induction. The Applicant requests a documentary record 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 20050214. 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 and narrative reason of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Separation 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. My Discharge was inequitable because it was based on one isolated incident in 12 months of service with no other adverse action.

2. My Discharge under other than honorable conditions is inequitable because my absence without official leave was not for a continuous period of 180 days, as defined under 38 CFR 3.12 (c) (6).

3. My Discharge was inequitable because counsel did not inform me that I would be committing an offense under 38 CFR 3.12 (D) (1) by requesting an administrative discharge in lieu of trial by court-martial.

4. My Discharge was inequitable because counsel did not inform me that I was eligible for a medical discharge due to a preexisting mental illness that was aggravated during my military service.

5. My Discharge is inequitable and an Honorable Discharge is the only way to correct the aforementioned injustices which would allow me to be treated by the Veterans Administration for my medical conditions.”

6. “The characterization of my Discharge and reason for my discharge is unjust, and incorrect because my status as a service member was terminated before I committed the offense of AWOL. Therefore, I was not subject to court-martial jurisdiction which renders the request for administrative discharge in lieu of trial by court-martial and the conditions set forth null and void.

(See pages 2-3 attached)”

7. “Defense Counsel rendered ineffective assistance of counsel by failing to inform me that, because my status as a service member was terminated at the time I went AWOL, I was not subject to court-martial jurisdiction.”

8. “The discharge is improper because my preservice civilian felony conviction, which was expunged, therefore, not listed on my enlistment documents, was used in the discharge proceedings.”

 9. “I request the following correction or injustice: my discharge from military service on November 30,1990 was issued under conditions which the Department of Veterans Affairs (VA) has determined constitutes a bar to payment of benefits for my service - connected illness.”

10. “I believe the record to be in error or unjust in the following particulars: I enlisted into the United States Armed Forces on March 15, 1990. Prior to my signing the enlistment contract I informed my probation officer that I would rather go into the miltary than go to prison. My probation officer referred me to a Navy recruiter, who agreed to enlist me in the Navy under a waiver of my felony conviction.
On March 15,1990 I signed an enlistment document under the honest belief that I was entering the United States Navy under a valid waiver of my felony conviction, which is why I enlisted as a seaman subfarer in the seaman apprenticeship program.
The enlistment document also setforth the stipulation that special consideration would be given for my GED because, I did not have a high school diploma or associate of arts degree, but, was only twelve credits shy of an associate of arts degree.
My active duty service was delayed until I was approved for a waiver into the armed service. My probation officer and Navy recruiter informed me that my felony conviction was expunged from my record so I did not have to mention it to anyone who asked.
On March 22, 1990 I was dischared from the reserve component and accepted for enlistment in the regular component of the United States Navy. I was not informed by the Navy recruiter that I would have to undergo a security background check in order to qualify for the nuclear field training program, which would disclose my felony conviction through the Federal Bureau of Investigations criminal arrest records, even though it was expunged.
On April 20, 1990 I was asked to sign a document that stated I acknowledge that I was not qualified for assignment to a submarine due to undisclosed civil involvement. The document setforth that I had to attend seaman apprenticeship training at RTC, Great Lake, IL prior to taking my recruit leave, the document also setforth the condition that this change fulfilled the provisions of my original enlistment contract.
On May 24, 1990,1 was served with a document which notified me that I was being administratively separated from the naval service for alleged unrevealed pre-service involvement with police or judicial authorities. The document also setforth that the least favorable characterization of my discharge would be entry level separation or general discharge.
I was so upset about the administrative action being taken against me I threatened to go AWOL. I was then served with a document that setforth a notice that should I go AWOL while my case was pending, the separation processing would proceed in my absence.
The misconduct of the Navy recruiter subjected me to extreme mental and emotional anguish. I was embarassed and humiliated in front of my peers and family. I could not take the embarassment and humiliation of being a military reject. This is why on August 11, 1990 I took an absence without leave. I suffered a great deal of abuse in my life and was trying to put my troubled past behind me, only to have the Navy throw it back in my face. The Navy’s action hurted me to my heart.
I was in a car accident while AWOL. I was at a hospital being treated. When I was asked if I had any health insurance I responded that I was a member of the United States Armed Forces and that I needed to report back to my unit.
I then handed over my military identification card to a hospital security officer and requested that he contact the nearest military installation so that I could turn myself in because I was AWOL. The hospital I was being treated at was located in Dallas, Texas. I was returned to military control at NACU Dallas, Texas on October 4, 1990.
When I was returned to Great Lake, IL I was charged with AWOL. I requested an administrative discharge, in specific, an other than honorable discharge.
However, I was seperated for defective enlistment and induction and was to receive a general discharge with the opportunity to reenlist with prior approval from the Commander, Naval Personnel Command.
Upon discharge from the naval service I was offered disablity compensation for the disease I contracted while I was on active duty. I waived the right to disability compensation at the time. I still was not thinking straight.
On October 14, 1998 I filed a claim for disability compensation with the Veterans Administration. The VA requested a character of discharge determination in my case.
On February 5,1999 the VA forwarded a letter which setforth that as long as its agency decided that my service was not “dishonorable” I would be eligible for veterans benefits.
On August 13, 1999 the VA forwarded a letter to me which setforth that its agency determined that my discharge from military service on November 30, 1990 was issued under conditions which constitute a bar to payment of Department of Veterans Affairs benefits.
The naval service by its own actions and admissions admits that my enlistment contract is null and void due to fraudulent enlistment article (Art. 84, U.C.M.J.)
“no person who … has been convicted of a felony, may be enlisted in any armed forces.” 10 U.S.C. 505.
The characterization of my discharge and reason for my discharge is unjust because, my status as a service member was terminated before I committed the offense of AWOL. Therefore, I was not subject to court-martial jurisdiction, which renders the request for administrative discharge in lieu of trial by court-martial and the conditions setforth null and void.
I respectfully request that this error and injustice be corrected and that my reason for separation be changed from separation in lieu of trial by court-martial to defective enlistment and induction.
I also respectfully request that my character of discharge be changed from under other than honorable conditions to general as setforth in the “notice of notification procedure proposed action.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Georgia Department of Veterans Services to the Applicant, dated December 9, 1998 (2 copies)
Applicant’s DD Form 214 (2 copies)
Letter to Special Assistant U.S. Attorney from Bureau of Naval Personnel, dated October 8, 1993 (2 copies)
Three pages from Applicant’s medical record
Notice of Medicaid Status, dated April 12, 2004
Letter to the Applicant from Department of Veterans Affairs, dated February 5, 1999 (2 pp.) (2 copies)
Applicant’s cover letters to the Board, dated April 20, 2004 and October 5, 2004
DD Form 293, Page 2 only submitting additional issues, dated October 4, 2004
Twenty-seven pages from Applicant’s service record
Letter to Applicant from Department of Veterans Affairs, dated August 13, 1999

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     900315 - 900321  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 900322               Date of Discharge: 901113

 Length of Service (years, months, days):

         Active: 00 07 23         (Does not exclude lost time)
         Inactive: None

 Age at Entry: 24                          Years Contracted: 4

 Education Level: 13*              AFQT: 55

 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

 Days of Unauthorized Absence: 48

*Considered high school graduate based on 30 semester hours of college
**No marks assigned

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Separation in lieu of trial by court martial, authority: NAVMILPERSMAN, Article 3630650.

 Chronological Listing of Significant Service Events :

900330:  Retention Warning: Advised of deficiency (Non-swim qualified), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
900524:  Applicant notified of consideration for an administrative separation by reason of defective enlistment and induction due to erroneous enlistment into the naval service as evidenced by unrevealed pre-service civil involvement with police or judicial authorities. If separation is approved, the least favorable characterization of service authorized is entry level separation or general.
900524:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

900711:  Commanding Officer recommended discharge with an entry level separation by reason of defective enlistment and induction due to fraudulent entry as evidenced by unrevealed pre-service civil involvement with police or judicial authorities. Commanding Officer recommended retention.

 900723:  CNPMC directed command to reprocess Applicant for defective enlistments and inductions due to fraudulent entry into the naval service. Reprocessing required because Applicant may only be separated under erroneous enlistment if it is not the result of fraudulent conduct on Applicant’s part.

900817:  Applicant to unauthorized absence 1600, 900817.

900917:  Applicant declared a deserter.
901004:  Applicant from unauthorized absence 1805, 901004 (48 days/apprehended).

901009:  Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Unauthorized absence from 900817 to 901004.

901023:  Partial letter signed by Applicant requesting an under other than honorable conditions discharge in lieu of trial by court-martial.

901023:  Defense Counsel’s letter to Commanding Officer. Applicant is persistent in desire to request an under other than honorable conditions discharge in lieu of trial by court-martial.
901030:  Legal Department letter to Dispensary: Applicant has requested an administrative discharge under other than honorable conditions for the good of the service in lieu of trial by court-martial. (Dispensary screened Applicant and found a psychiatric evaluation was not necessary.)

901113:  DD Form 214: Applicant discharged under other than honorable conditions in lieu of a trial by court-martial.

Partial discharge package

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19901113 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).

Issues 1, 3, 4 and 10. On 19901023, the Applicant requested an under other than honorable conditions discharge in lieu of trial by court-martial for his period of unauthorized absence in excess of 30 days. No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation. In the request, the Applicant certified that he understood he would be deprived of virtually all veteran’s benefits and that an under other than honorable conditions discharge would adversely affect him in civilian life. Despite the Applicant’s assertion to the contrary, the Board found no indication that the Applicant was represented by his defense counsel in any way that would affect the propriety and equity of his discharge. Administrative discharge for misconduct takes precedence over potential or pending separation for other reasons. 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.

Issues 2, 5 and 9. The Veterans Administration determines eligibility for post-service benefits, not the NDRB. There is no requirement or law 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.
Issues 6 and 7. The Board found no indication that the Applicant was discharged, and therefore not subject to the UCMJ, prior to the commencement of his unauthorized absence. Relief denied.

Issue 8. The Board found no indication that the Applicant’s pre-service civilian criminal record affected the propriety or equity of the approval of the Applicant’s request for discharge under other than honorable conditions in lieu of a trial by court-martial. Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety 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, hardship, 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 15560A), Change 7, effective
25 May 89 until 14 Aug 91, 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 5420.174D 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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