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


FOR OFFICIAL USE ONLY


ex-AN, USN
Docket No. ND05-01407

Applicant’s Request

The application for discharge review was received on 20050823. 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 20060421. 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 .

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and/or attached document/letter:

“My discharge was inequitable because it was based on one isolated incident in 3 months of absence during my time with the U.S. Navy & no other adverse action was taken.”

To those it may concern:

I have found that since my separation from the service I have been left with the feelings of regret, emptiness, and guilt. Seeing military personal, commercials, and jets flying over head everyday, it seems as though I am reminded of a life that was once my own. Continuously, I look for something that can offer me more then what the U.S. Navy had, but frankly, I have not found it. I then thought to myself “ What is just as rewarding as the service?” I came up with one possible answer, maybe becoming a police officer could give me that same satisfaction I felt in the NAVY. I am sure that becoming a police officer would be quite rewarding but deep down I know that I could never get that same feeling of pride and honor I felt from serving my country from any other job that was not a part of the service. I have realized over the past few months what a huge mistake it was to leave the service. I have disappointed not only myself, but my family, and the ones that cared for me the most. If given the opportunity to have my discharge upgraded to a general discharge I know that without hesitation I would once again proudly serve this country as I once did. To close my letter I would like to thank those of you readings this and I hope that you will take what I have said into consideration and grant me my upgrade. I know that if given my request I will truly be thankful and will not take the privilege of serving this country for granted like I once did. Thank you for all of your time and consideration.

Sincerely,

H_, A_ R. (applicant)

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214 (Member 1 and 4) (2)
Evaluation Report and Counseling Record, dtd February 4, 2004
Authorization for advancement, dtd December 19, 2004 (2)
Notification letter from the applicant, dtd October 24, 2005

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PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Inactive: USNR (DEP)     20030517 - 20030915      COG
         Active: None

Period of Service Under Review :

Date of Enlistment: 20030916             Date of Discharge: 20040930

Length of Service (years, months, days):

         Active: 01 00 14 (Does not exclude lost time.)
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: 98 days
         Confinement:              None

Age at Entry: 18

Years Contracted: 4

Education Level: Undetermined             AFQT: 36

Highest Rate: AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 3.0 (1)*    Behavior: 3.0 (1)*       OTA: 3 .00*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal

*Extracted from supporting documents provided by the applicant.

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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 :

040607:  Applicant to unauthorized absence at 0600 on 040607. Applicant declared a deserter.

040913:  Applicant from unauthorized absence on 040913 (98 days). [Date extracted from DD Form 214, Block 29.]

040930:  Applicant declined VA treatment for a minimum of 30 days due to alcohol and/or drug dependency prior to discharge.

040930:  DD Form 214: Applicant discharge under other than honorable conditions in lieu of trial by court-martial.


Service Record was missing elements of the Summary of Service.

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040930 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 records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

The Applicant states his discharge was inequitable because it was based on one isolated incident in 3 months of absence during his time with the U.S. Navy, with no other adverse action”. In a signed statement, the Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial. He consulted with counsel and was fully advised of the implications of his request. The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received may have a bearing. The Applicant admitted he was guilty of violating UCMJ Article 86 and that he understood the elements of the offense with which he was charged. The evidence of record shows that the Applicant violated UCMJ Article 86 (unauthorized absence for 98 days). The 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 NDRB advises the Applicant that certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline. Violations of Article 86 are considered serious offenses and typically warrant a punitive discharge if adjudged at a special or general court-martial.

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, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider. Relief denied.
The Applicant requests an upgrade to pursue employment as a law enforcement officer. 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.

The Applicant states that if his upgrade request is approved, he would serve in the military again. 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. Reenlistment policy of the naval service is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

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 30 May 2005, 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 .


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