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NAVY | DRB | 2005_Navy | ND0500947
Original file (ND0500947.rtf) Auto-classification: Denied


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

ex-ENFR, USN
Docket No. ND05-00947

Applicant’s Request
The application for discharge review was received on 20050511. 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 documentary record discharge review. The Applicant did not designate a 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 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:

“From my understanding at the time of my discharge, Under Other Than Honorable Conditions were automatically changed to General/Under Honorable Conditions after six months of discharge date once I contact the nearest recruiter’s office. It never occurred as my life’s been in turmoil since then. As I got myself together utilizing all available resources applying for things and I’ve been marking General discharge on applications which have been denied for false accusations pertaining to military experience and as I investigated further I’ve learned that my under other than honorable discharge never been upgraded to a General which is my request now. Thanks”
Documentation
Only the service record was 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)     19890923 - 19900916      COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 19900917             Date of Discharge: 19911009

 Length of Service (years, months, days):

         Active: 00 08 22 (Excludes lost time)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 75 days
         Confinement:              46 days

 Age at Entry: 18

 Years Contracted: 4

 Education Level: 12                                 AFQT: 25

 Highest Rate: ENFR

 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): National Defense Service Medal
*Not Available


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: MILPERSMAN, Article 3630650.

Chronological Listing of Significant Service Events :
910516:  Applicant to unauthorized absence at 0600 on 910516.

910612:  Applicant missed ship’s movement.

910617:  Applicant declared a deserter.

910708:  Applicant missed ship’s movement.

910723:  Applicant missed ship’s movement.

910729:  Applicant missed ship’s movement.

 910729:  Applicant apprehended by civilian authorities at 1400 on 910719 in Compton, California by Los Angeles County Sheriff’s Department pursuant to outstanding DD-553. No civil charges pending.
910730:  Applicant returned to military control at 1220 on 910730.
910807:  Applicant evaluated by Substance Abuse Program Coordinator.
Provisional Diagnosis: Chemical dependency: Alcohol and drugs, early stage.

910822:  Applicant to confinement.

910925:  Medical Officer conducted Dependency Determination: “Applicant denies drug and alcohol dependence. Claims experimented. Also states substance abuse discussions here have improved his understanding. Do not feel VA hospital care is indicated.”

910925:  Medical Officer found Applicant qualified for separation.

911007:  Applicant released from pretrial confinement and transferred to USS SCHENECTADY LST-1185.

 911009:  DD Form 214: Applicant discharged under other than honorable conditions in lieu of trial by court-martial (MILPERSMAN, Art. 3630650).
Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19911109 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).

 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 a 75-day period of unauthorized absence. The Applicant missed movement on four occasions prior to being apprehended by civil authorities and returned to military control. The Applicant’s violations of Articles 86 and 87 are serious offenses. 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.

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 offenses for which he was charged fully explained by counsel, that he was guilty of the offenses 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. Relief denied.

The Applicant contends that it was his understanding that under than honorable conditions discharges were automatically upgraded to general (under honorable conditions) six months after discharge. There is no law or regulation that authorizes a discharge to be automatically upgraded after six months. A former service member has 15 years from the date of discharge to petition the Board for consideration of an upgrade. The Board does not automatically upgrade a discharge after six months. Relief denied.

The following is provided for the edification of the Applicant. 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.

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), effective 15 Aug 91 until
04 Mar 93, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR 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 or Article 87, missing movement, 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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