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NAVY | DRB | 2005_Navy | ND0501378
Original file (ND0501378.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND05-01378

Applicant’s Request
The application for discharge review was received on 20050816. 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.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060614. 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 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:

“So that I may recieve VA benefit. For surgery. I am about ready to recieve disability.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Travel certificate, separation without orders, dtd September 20, 2002
DD Form 149, dtd August 8, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20010424 - 20010924      COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 20010925             Date of Discharge: 20020920

 Length of Service (years, months, days):

         Active: 00 11 26 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 148 days
         Confinement:              None

 Age at Entry: 18

 Years Contracted: 4

Education Level: 11                                 AFQT: 52

 Highest Rate: SA

 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 :

020111:  Applicant to unauthorized absence at 1930 on 020111.

 020508:  Applicant from unauthorized absence at 0730 on 020508 (116 days/surrendered).
020718:  Applicant to unauthorized absence on 020718.

 020819:  Applicant from unauthorized absence on 020819 (32 days).
020916:  Applicant’s request for discharge under other than honorable conditions letter. [Extracted from Commanding Officer’s letter dated 020916.]

020916:  Commanding Officer, Transient Personnel Unit Norfolk, approved Applicant’s request for discharge under other than honorable conditions. The Applicant’s discharge was in lieu of trial by court martial on the charge of violation of Article 86, Uniform Code of Military Justice.

020916:  The Commanding Officer, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge under other than honorable conditions.

 Service Record contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20020920 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).

 The Applicant bears the burden of establishing his issues through the presentation of substantial and credible evidence. There is no evidence in the record, nor has the Applicant produced any evidence, that the discharge was not proper and equitable. The Board presumed that charges were preferred for violation of the Uniform Code of Military Justice (UCMJ), that these charges were referred to a court-martial, that the Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial, was afforded counsel, and fully advised of the implications of his request. The Board presumed that the Applicant understood the elements of the offense with which he was charged and admitted guilt in lieu of trial. The Commanding Officer exercising GCMCA approved the request for an administrative separation in lieu of a trial by court-martial, directing the Applicant’s discharge. Relief is not warranted.
The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

For the information of the Applicant, 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 the service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Verifiable proof of post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. At this time, the Applicant has provided no 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 additional evidence related to this 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), 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 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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