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NAVY | DRB | 2005_Navy | ND0500713
Original file (ND0500713.rtf) Auto-classification: Denied


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

ex-AN, USNR
Docket No. ND05-00713

Applicant’s Request
The application for discharge review was received on 20050322. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to uncharacterized. 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:

“My discharge was inequitable because of the administrations inability or unwillingness to consider my mental state at the time of the events leading to discharge. In the months prior to desertion I was hospitalized at Norfolk Mental Facility, had requested numerous times to be released from service (the recruiter told me what I wanted to hear instead of the truth, and experienced a death in the family (a very close cousin) to suicide. This compilation of stresses literally drove me to the feeling of being a captive, rather than a service member. Therefore I respectfully request a change of designation to uncharacterized, with the wish to continue my life without the stain of youthful bad decisions to hinder my professional development.”

 Applicant’s Remarks: (Taken from the DD Form 293.)

 “Since discharge, I have began studying at universities and colleges in Tennessee. I have completed EMT training and worked nearly four years in emergency medicine, I am near completion of a bachelors of arts of arts and sciences at Tennessee State University, and am currently studying on exchange in Germany, I have learned Spanish, and German, and hope to engage in a public service career with an emphasis in international relations. As you can see, the current discharge designation could be a hindrance to an otherwise public beneficial career I only ask that stupid decisions made in youth not prevent me from public service in the years to come. Thank you for consideration. [signed] (Applicant)”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19961025             Date of Discharge: 19990209

 Length of Service (years, months, days):

         Active: 01 05 27 (Does not exclude lost time.)
         Inactive: 00 09 19

 Time Lost During This Period (days):
         Unauthorized absence: 56 days
         Confinement:              Unknown

 Age at Entry: 17 (Parental Consent)

 Years Contracted: 8

 Education Level: 12                                 AFQT: 72

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NA*                                    Behavior: NA*             OTA: NA*

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): None
* Not Available


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 :

970813:  Commenced active duty for a period of 36 months under the Seafarer Airman Apprenticeship Program.
961017:  Pre-service waiver for underweight by 6 pounds granted.

 981009:  Applicant to unauthorized absence at 0630 on 981009.

981106:  Applicant missed ship’s movement.

981108:  Applicant declared a deserter.

 981127:  Applicant currently incarcerated in Virginia Beach jail on charges of reckless driving and resisting arrest.
981204:  Applicant from unauthorized absence at 1740 on 981203 (56 days/apprehended).
990209:  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.
Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19990209 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).

 Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question. No such impropriety or inequity is evident during the Applicant’s enlistment. In the absence of an administrative discharge package, the Board presumed regularity in the conduct of government affairs. The Board presumed the Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial after consultation with counsel and being fully advised of the implications of his request. The Board further presumed 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 record contains evidence that the Applicant was in an unauthorized absence status for 56 days from 19981009 to 19981204. The Board presumed the Applicant admitted he was guilty of violating Article 86: unauthorized absence for a period of more than thirty 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.

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 following is provided for the edification of the Applicant. By regulation, only members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an uncharacterized or entry-level separation characterization of service. The Applicant’s service of 1 year 5 months 27 days, makes him ineligible to receive an entry-level or uncharacterized separation.

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), 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 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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