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NAVY | DRB | 2005_Navy | ND0500904
Original file (ND0500904.rtf) Auto-classification: Denied


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

ex-MRFA, USNR
Docket No. ND05-00904

Applicant’s Request
The application for discharge review was received on 20050427. 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 list any representative on the DD Form 293.
In the acknowledgement letter the Applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, DC area. The Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050819. 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/Separation 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:

"Attention Review Board:

 I respectfully request your consideration for an upgrade of my discharge. I am wanting to join the Navy Reserves. I feel it would be to my advantage to serve again. I am currently a tool and die maker and have been in that line of work since my training in the Navy. My training in the Navy greatly improved my life and I would be honored to serve again. I sincerely regret my misconduct and have learned form my mistakes. I feel I would be an asset to the Navy Reserves and I thank you for taking the time to review my request.
Sincerely,
[signed]
D_ K. M_ (Applicant)"
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Service-related documents (14 pages)


PART II - SUMMARY OF SERVICE

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

 Period of Service Under Review :
Date of Enlistment: 880112               Date of Discharge: 910111

 Length of Service (years, months, days):

         Active: 01 01 22
         Inactive: 00 00 21

 Time Lost During This Period (days):
         Unauthorized absence: 626
         Confinement:              None
Age at Entry: 22                          Years Contracted: 8

 Education Level: 12 (GED)                          AFQT: 51

 Highest Rate: MRFA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.80 (1)             Behavior: 3.60 (1)                OTA: 3.60

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214) : None


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

UNDER OTHER THAN HONORABLE CONDITIONS/separation in lieu of trial by court martial, authority: NAVMILPERSMAN, Article 3630650.






 Chronological Listing of Significant Service Events :

880202:  Applicant ordered to active duty for 36 months under the Active Mariner
 Program.
881004:  Applicant to unauthorized absence from USS SPIEGEL GROVE
 (LSD 32) at 0530 on this date.
881017:  Civil Conviction in the General District Court, Criminal Division, Norfolk, VA for littering.
 Sentence: Fined $100.00 plus court cost.
881103:  Applicant from unauthorized absence aboard USS SPIEGEL GROVE (LSD 32).at 0930 on this date (30 days/surrendered).

881116:  NJP for violation of UCMJ, Article 86: Absent himself from his unit; violation of UCMJ, Article 87: (2 Specifications) Missing ship’s movement.
         Award: Forfeiture of $150.00 pay per month for 2 months (suspend 1 month FOP for 3 months), restriction and extra duty for 30 days. No indication of appeal in the record.

881212:  Retention Warning: Advised of deficiency (Failed to appear in court due to UA status, attended later court date and paid fine. First court appearance for littering). Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
890216:  Retention Warning: Advised of deficiency (DC/3M delinquent as of 890110). Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
890406:  Retention Warning: Advised of deficiency (UA for 24 hours on 890401 after 5 days of emergency leave). Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
890417:  Applicant to unauthorized absence from USS SPIEGEL GROVE
 (LSD 32) at 0715 on this date.
890518:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 890518 having been an unauthorized absentee since 0715 on 890417 from USS SPIEGEL GROVE (LSD 32).

901204:  Applicant from unauthorized absence aboard Transient Personnel Unit, Great Lakes, IL at 2100 on this date (596 days/surrendered).

901205:  Report of Return of Deserter. Applicant returned to military control at 2100 on 901204. Retained onboard for disciplinary action disposition.

910111:  Applicant discharged Under Other Than Honorable Conditions/In Lieu of Trial by Court Martial, authority: NAVMILPERSMAN, Article 3630650, per DD Form 214.

Service Record did not contain the administrative discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19910111 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 available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

The Applicant contends that he has learned from his mistakes and has successfully applied skills acquired in the Navy to his civilian life. The Applicant is advised that there is no law or regulation which provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized, however, 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 an upgrade on this basis. Relief is therefore denied.

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 reviewed the Applicant's available service records and discovered no impropriety or inequity in his administrative separation. Even though the Applicant's service record did not contain his administrative discharge package, it clearly shows that the Applicant committed the following violations of the UCMJ:
o        Article 85 Desertion on 19 890518;
o        Article 86 Unauthorized absence for a period of 30 days from 19881004 to 19881103;
o        Article 86 Unauthorized absence for a period of 596 days from 19 890417 to 19901204;
o        Article 87 Missing ship's movement on two occasions between 19881004 and 19881103.
Such misconduct constitutes multiple offenses for which a punitive discharge is authorized under Appendix 12 of the Manual for Courts-Martial and, thus, permits the Applicant's separation in lieu of trial by court-martial. There is no evidence in the record, nor did the Applicant provide any evidence, to refute the presumption of regularity in this case. Relief is therefore denied.


The Applicant states that he wishes to join the Naval Reserves in order to again serve his country. The Board recognizes the Applicant's motivation but advises him that that the NDRB has no jurisdiction over reenlistment into the Navy (including the Reserves) or any other branch of service. An unfavorable characterization of service and/or reenlistment code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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. If the Applicant desires such a hearing, he will need to submit his application by 20060111. 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 15560A), Change 7, effective
25 May 89 until 14 Aug 91, 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, 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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