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NAVY | DRB | 2004_Navy | ND04-01310
Original file (ND04-01310.rtf) Auto-classification: Denied


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

ex-RPSA, USN
Docket No. ND04-01310

Applicant’s Request
The application for discharge review was received on 20040816. 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 discharge review. The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050201. After a thorough review of the available 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. “For Health Services, and Dental Services, and Mental Health Services.”
Documentation
Only the service and medical records were reviewed, as the Applicant did not provide additional documentation for the Board to consider.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR            930423 - 930628  To report ACDUTRA
         Active: USNR              930629 - 931001  Released ACDUTRA
         Inactive USNR             931002 - 931128  To enlist USN

 Period of Service Under Review :
Date of Enlistment: 931129               Date of Discharge: 960829

 Length of Service (years, months, days):

         Active: 01 00 26                  [Does not include lost time]
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 11 (GED)                 AFQT: 44

 Highest Rate: RPSA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*                 Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 606 [Includes confinement in Australia]

*No Marks Found in service record.

 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 :

941207:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 941206 having been an unauthorized absentee since 941107 from Naval Hospital, Twentynine Palms, CA.
         Mother of Applicant informed the command that he left on 941105 or 941106 for Melbourne, Australia to be a rap singer. He cleared all personal possessions out of his BEQ room and his office. He is not known to be armed and dangerous. He contemplated suicide in Sept 94 and was medically evaluated and found to be at low risk. Has no mental disorders and is not wanted for any other offense.

960708:  USDAO Canberra advised BUPERS that Applicant absented himself at 0730 hours on 941107 from the Naval Hospital Twentynine Palms, CA. In Dec 95, USDAO Canberra received info Applicant was in Sydney area. Applicant entered Australia on a 90 day tourist visa which expired in Feb 1995. Applicant has remained in Australia on an expired visa. Pursuant to the Australian visiting Defense Forces Act and with the concurrence of Deserter Control, San Diego, arrest warrant was issued on 951219 for his arrest. Arrest warrant has predicated upon his absentee status and he is considered extremely dangerous due to his temperament and proficiency in martial arts. Applicant arrested on 960707 and Deserter Control Great Lakes, was advised.

960711:  Report of Return of Deserter. Applicant apprehended by civil authorities on 960707 (0930) at Sydney, Australia. Returned to military control 960708 (0711) by Navy Absentee Collection, and enroute to TPU Puget Sound, WA, EDA: 17JUL96.
960716:  USDAO Canberra advised BUPERS that Applicant was arrested on
960707 and requested release from Australian confinement. On
960715 the Australian Minister for Defense denied Applicant’s petition for release from Australian Confinement. On 960716, Applicant and escorts departed Australia.

 960716:  Arrived Transit Personnel Unit, Puget Sound, WA.
960829:  Applicant discharge under Other Than Honorable Conditions in lieu of a trial by court-martial.

[DISCHARGE PACKAGE NOT CONTAINED IN SERVICE RECORD.]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960829 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 Board presumed regularity in the conduct of governmental affairs (E).

Issue 1. 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(s) for which he was charged fully explained by counsel, that he was guilty of the offense(s) and that he had a complete understanding of the negative consequences of his actions. 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.

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 unauthorized absence for 606 days, a serious offense, which included confinement in Australia. 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.

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board. 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. 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. 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..

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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