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NAVY | DRB | 2005_Navy | ND0500797
Original file (ND0500797.rtf) Auto-classification: Denied


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

ex-AA, USN
Docket No. ND05-00797

Applicant’s Request
The application for discharge review was received on 20050407. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Region. The Applicant did not designate a representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051102. 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 a trial by court-martial .

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“I request to have my discharge upgraded to a general discharge because I have been out of the service for 3 years on a “OTH”, and I feel that I have come to realize my mistakes as a young adult, and the effects that they can have on me through the future, also I am currently enrolled at Ashland Community College, in the Criminal Justice Program, with hopes of becoming a Homeland Security Agent /State police officer. Still debating which but will have my mind made up by summer semester (June).”

 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)     19990114 - 19990926      COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19990927             Date of Discharge: 20010919

 Length of Service (years, months, days):

         Active: 00 09 13 (Excludes lost time)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 408 days
         Confinement:              16 days

 Age at Entry: 18

 Years Contracted: 4

 Education Level: 12                                 AFQT: 40

 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 :

990114:  Pre-service waiver for non-minor misdemeanor (assault) granted.

 000331:  Applicant to unauthorized absence at 0630 on 000331.

 000403:  Applicant from unauthorized absence at 0630 on 000403. EOAS changed to 030929.
000414:  Applicant to unauthorized absence at 0630 on 000414.
000515:  Applicant declared a deserter.

 000606:  Applicant from unauthorized absence at 1400 on 000606. EOAS changed to 031121.
000622:  Summary Court-Martial.
         Charge: violation of the UCMJ, Article 86 (2 specs):
         Specification 1: Absence fm unit on or about 00MAR31 until 00APR03.
         Specification 2: Absence fm unit on or about 00APR14 until 00JUN06.
          Finding: to Charge and the specifications thereunder, guilty.
          Sentence: Forfeiture of $500.00, confinement for 20 days.
         CA action 000626: Sentence approved and ordered executed.
000622:  Applicant found fit for confinement.

000622:  Applicant to confinement.

000708:  Applicant from confinement.

 000710:  Applicant to unauthorized absence at 0630 on 000710.

 010130:  Applicant from unauthorized absence at 2320 on 010130. EAOS changed to 040506.
010216:  Applicant to unauthorized absence on 010216.
         [Extracted from DD Form 214, Block 29.]

010712:  Applicant from unauthorized absence on 010712.
         [Extracted from DD Form 214, Block 29.]
010919:  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 20010919 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 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. 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 he has “come to realize [his] mistakes as a young adult and the effects that they can have on [him] through the future.” 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 four periods of unauthorized absence totaling 408 days. The Applicant was convicted at summary court-martial for two periods of unauthorized absence. The Applicant’s unauthorized absences in excess of 30 days are serious offenses. The Applicant’s conduct is considered a violation of the special consideration given the Applicant at the time of his enlistment due to the waiver required for a non-minor misdemeanor. 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.

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 is not warranted.

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 29, effective
11 Jul 2000 until 21 Aug 2002, 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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