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NAVY | DRB | 2005_Navy | ND0501103
Original file (ND0501103.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND05-01103

Applicant’s Request
The application for discharge review was received on 20050622. The Applicant requests that his Narrative Reason for Separation be changed to “ADMIN DISCHARGE”. 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 20051215. After a thorough review of all 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 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:

 “ Respectfuly request a change in my discharge to become an administrative discharge. I understand that my actions for going UA were wrong, but before this incodent I was already being discharged due to fact that the navy recruiter (1 st Class Petty Officer D_) who enlisted me in the navy had tookactions upon himself to put false information and documents in my enlistment papers (frauglent enlistment) another reason for request of admin discharge is so that I SR C_, G.J. can, with proper documents once again join my navy combat team and to defend my country the rightful and truthful way. I would want to give my all .

[signed] G_ C_”
Documentation
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)     20011206 – 20020101               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20020102             Date of Discharge: 20030114

 Length of Service (years, months, days):

         Active: 01 00 12 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 105 days
         Confinement:              none

 Age at Entry: 24

 Years Contracted: 4

Education Level: 12                                 AFQT: 35

 Highest Rate: SR

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

Chronological Listing of Significant Service Events :

011127:  Pre-service waiver for physical standards approval (hearing loss).

 020820:  Applicant to unauthorized absence 0730 on 20 August 2002.

 021203:  Applicant from unauthorized absence on 03 December 2002 (105 days).

030114:  DD Form 214: Applicant discharged under other than honorable conditions in lieu of trial by court-martial per MILPERSMAN 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 20030114 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 all 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, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. By regulation, to be discharged by reason of separation in lieu of trial by court martial a service member must :
1. Formally request to be discharged in order to escape trial by court-martial for charges, which could result in a punitive discharge.
 2. Admit guilt to the charges preferred against him.
3. Accept a under other than honorable conditions discharge by reason of separation in lieu of court-martial.
After a review of Applicant’s case the Board discovered no impropriety or inequity. Relief is denied.

The Applicant requests that his narrative reason for separation be changed to “ADMIN DISCHARGE”. The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted. The Applicant’s service was flawed by an unadjudicated violation of UCMJ Article 86 (unauthorized absence, 105 days). Unauthorized absence in excess of 30 days is punishable by a punitive discharge if convicted by courts-martial. There is credible evidence in the record that the Applicant violated the UCMJ and that he was properly processed in accordance with reference (A). For the edification of the Applicant, the Naval Military Personnel Manual does not permit “ADMIN DISCHARGE” as an authorized narrative reason for separation. Separation in lieu of trial by court martial is a form of administrative discharge. No other narrative reason for separation could more clearly describe why the Applicant was discharged. To change the narrative reason for separation would be inappropriate. Relief denied.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. An unfavorable “RE” 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. This issue is without merit, relief not warranted.

In the absence of a complete discharge package, the Board presumed regularity of governmental affairs. Therefore, the Board presumed the Applicant’s discharge to have been conducted in accordance with that described in reference (A) i.e. the Applicant requested discharge to escape trial by court-martial, had the elements of the offense for which he was charged fully explained by counsel, that he was guilty of the offense and that he had a complete understanding of the negative consequences of his actions. If the Applicant feels his discharge was administratively flawed he bears the burden of establishing his issues through the presentation of substantial and credible evidence.

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 evidence of a drug free life style, proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. The Applicant has not provided post service documentation for the Board’s consideration.

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 a 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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