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NAVY | DRB | 2005_Navy | ND0500710
Original file (ND0500710.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-AN, USN
Docket No. ND05-00710

Applicant’s Request
The application for discharge review was received on 20050323. The Applicant requests the Discharge 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 designate a representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20051027. 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 and reason for discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions in lieu of a trial by court-martial .
PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“I went UA from my command to take care of my terminally ill mother. She had no money and nowhere to live. She needed my help and I could not let her down. When I went home, I got my mother and I an apartment and I took care of her until she passed away. I really enjoyed and wanted to stay in the Navy, but I couldn’t leave my mother there to die alone. I am now pursuing an associate degree from Devry University in the Electronics field. I just don’t want my past mistakes to affect my future success. I know I let my command down; and I am sorry, but I had a responsibility to my mother, too. Please upgrade my OTH to HON so I can provide for my family. Thank you.”

 Documentation
Only the service and medical records were reviewed. The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19991021 - 19991024      COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19991025             Date of Discharge: 20031216

 Length of Service (years, months, days):

         Active: 04 01 22 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence:    905 days*
         Confinement:                       Unknown

 Age at Entry: 23

 Years Contracted: 4

 Education Level: 11 (GED)                          AFQT: 66

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (1)                      Behavior: 3.00 (1)       OTA: 3.17

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal
*Time lost extracted from DD Form 214, Block 29.


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

UNDER OTHER THAN HONORABLE CONDITIONS/ IN LIEU OF TRIAL BY COURT MARTIAL, authority: MILPERSMAN, Article 1910-106 (formerly 3630650).

Chronological Listing of Significant Service Events :

010430:  Applicant to unauthorized absence at 0700 on 010430.

 010803:  Applicant from unauthorized absence at 1600 on 010803 (95 days/surrendered). Change EAOS to 04JAN27.
010809:  Applicant to unauthorized absence on 010809 [extracted from DD-214].

031028:  Applicant from unauthorized absence on 031028 [extracted from DD-214].

 031216:  DD Form 214: Applicant discharged under other than honorable conditions in lieu of a trial by court-martial, authority: MILPERSMAN Article 1910-106.
Service Record did not contain the Administrative Discharge Package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031216 in lieu of a trial by court-martial (A and B) with a service characterization of under other than honorable conditions. 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).

 In the absence of a complete discharge package, the Board presumed that the Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial, consulted with counsel, and was fully advised of the implications of his request. The Board also presumed that 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. The Board further presumed that the Applicant stated he understood the elements of the offenses with which he was charged and admitted he was guilty of violating Article 86: unauthorized absence in excess of 30 days. The evidence of record confirms the Applicant was in an unauthorized absence status from 20010430 to 20010803 and again from 20010809 to 20031028 for a total of 905 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. Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service. Relief is not warranted.

The Applicant contends his discharge is inequitable because he had to return home to care for his dying mother. The Applicant bears the burden of establishing his issues through the presentation of substantial and credible evidence. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that his unauthorized absence in excess of two years should be excused because he was caring for his ill mother. The Applicant’s statements alone do not substantiate his claims. 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 Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any post-service documentation for the Board to consider. 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. The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time. 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 5420.174D 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, Para 211, Regularity of Government Affairs .


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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