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NAVY | DRB | 2004_Navy | ND04-00906
Original file (ND04-00906.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND04-00906

Applicant’s Request
The application for discharge review was received on 20040512. 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 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 20041029. 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).
The NDRB did note an administrative error on the original DD Form 214. Block 29, Dates of Time Lost During This Period, should read: “TL – 19991204 TO 20000410, 20000414 TO 20030415" vice "TL - 20000414 TO 20030415." The Commander, Naval Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.




PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “I have applied for many jobs and have not been accepted because of my discharge. If I can’t get a better job than what I have I will not be able to support my wife and children.

One problem I had before I went UA is I was told that I would get money for college. That was not so. I was not going to have any and I was told that there was nothing I could do about.

I would also like to know if there is any way that may Re-entry code could be changed. The reason I ask this is because if I can’t get a better job to take care of my family, I would like to Re enlist in any branch possible. That is not the only reason I would Re-enlist I want to serve my country the way it deserves to be served.

I know there is no reason for what I did in the past, but I would like to make the future for my family better.”

 Applicant indicated additional issues were attached. None were found.

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: None
         Inactive: USNR (DEP)     991103 - 991114  COG

 Period of Service Under Review :
Date of Enlistment: 991115               Date of Discharge: 030508

 Length of Service (years, months, days):

         Active: 00 05 22 (Does not include lost time)
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

Education Level: 12                        AFQT: 62

 Highest Rate: SR

 Final Enlisted Performance Evaluation Averages (number of marks): None

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 1227

 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 :

991203:  To UA.

000401:  Apprehended by civil authorities.

000411:  Returned to military control.

000414:  To UA.

030416:  From UA, to duty.

 030417:  Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial. He waived his right to consult with counsel. The Applicant stated he was guilty of the charges preferred against him. Specifically, he admitted to violating UCMJ, Article 86: UA from 2000, 000414 to 1515, 030416. 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.

030422:  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 20030508 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 20030417, the Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial. He waived his right to consult with counsel. The Applicant stated he was guilty of the charges preferred against him. The Applicant stated that he 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. The Applicant is responsible for his actions and must accept the consequences of his misdeeds. Relief denied.

 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 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.
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, to enhance employment opportunities, or for 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), re-issued October 2002, effective 22 Aug 2002 until Present, 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 5420.174C 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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