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NAVY | DRB | 2004_Navy | ND04-01333
Original file (ND04-01333.rtf) Auto-classification: Denied


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

ex-BTFN, USN
Docket No. ND04-01333

Applicant’s Request
The application for discharge review was received on 20040823. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge 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 20050201. 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. “To whom it may concern:

The Navy has been very great for me. I acquired lots of knowledge, self-determination, and the ability to know how. I was master at arms and honor man in boot camp In “A” school I had the highest GPA in my class along with being class leader. After successfully making it to the fleet, I also became sailor of the month accompanied by several certificates.
I was an adolescent when I made the decision of being absent without leave. But adolescents make dumb decisions. My Naval history should show I was not only in the Navy, I was the Navy.
Finally, I have to live with this decision for the rest of my life. Please don’t let it render my career. I had to turn in my badge and uniform until I can get an upgrade in military status. This is my greatest goal to achieve. Then I can go back to accomplishing my future in law enforcement.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Aiken County police record check, dated October 29, 2002
Letter from South Carolina Department of Public Safety, Criminal Justice Academy Division, dated January 8, 2003
Statement from Applicant, undated
Character reference, dated January 28, 2003
Character reference, dated January 21, 2003
Character reference, dated January 20, 2003 (unsigned)
Character reference, gated January 29, 2003
Honor Recruit certificate, dated August 30, 1991
Certificate of completion, dated January 28, 1992
Certificate of completion, dated June 30, 1992
Nomination, dated September 1, 1992
Letter of appreciation, undated
Fourteen pictures
Recruit graduation review, dated August 30, 1991
Letter from Applicant, undated
Travel certificate, separation without orders, dated May 5, 1998
Enlisted strength loss
Record of emergency data NAVPERS 1070/602R
Absentee/Deserter/Prisoner movement order, dated March 30, 1998
Separation approval, dated April 30, 1998
Separation request, dated April 30, 1998 (3 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     900802 - 910707  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 910708               Date of Discharge: 980505

 Length of Service (years, months, days):

         Active: 06 09 28                  [Does not exclude lost time]
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 33

 Highest Rate: BTFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*                 Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 1672

*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 1910-106 (formerly 3630650).

 Chronological Listing of Significant Service Events :

930829:  Applicant to unauthorized absence, 2400, 930829.

930829:  Applicant declared a deserter.

980328:  Applicant apprehended in New Ellington, SC at 0110, 980328 (1672 days/apprehended) and transferred to Aikon Detention Center to awaiting FFT by NACIC escorts.

980402:  Applicant released from Aikon Detention Center to NACIA escorts at 0930, 980402.

980402:  Applicant DOB TPU Norfolk, VA at 1650, 980402. Applicant retained onboard for disciplinary infractions/disposition only. Applicant restored to full duty at 1855, 980303. Applicant returned to military control 980328. No known civil charges pending.

980430:  Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial. He consulted with counsel and was fully advised of the implications of his request. The Applicant stated he understood the elements of the offense(s) with which he was charged, and admitted he was guilty of all the charges preferred against him. Specifically, he admitted to violating UCMJ, Article 86. The Applicant stated he was completely satisfied with the counsel he had received. 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.

980430:  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 19980505 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. 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 over 1500 days. 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.

On 19980430, the Applicant requested discharge for the good of the service to escape trial by court-martial. In the request the Applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he was guilty of the offenses. He further certified a complete understanding of the negative consequences of his actions and that characterization of service could be under other than honorable conditions. 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Relief denied.

The Applicant contends that up until his unauthorized absence, he was an outstanding sailor and that his misconduct was the result of an adolescent decision. While he may feel that his immaturity was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. Further, despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

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 the service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Verifiable proof of post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. At this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade. Relief denied.

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 II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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

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

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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