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NAVY | DRB | 2005_Navy | ND0501523
Original file (ND0501523.rtf) Auto-classification: Denied


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

ex-SK3, USN
Docket No. ND05-01523

Applicant’s Request
The application for discharge review was received on 20050914. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. 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 20030621. 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:

“My discharge was based on one isolated incident in 28 months of service. I have matured and learned from this one mistake. I would like to go to a great college and provide for my family. I would like to prove my military skills to employment business but I am not allowed because of discharge. I would have loved to make a career out of the Navy but now that this happened I would like to receive as much education as possible for my kids, to have a well educated father. Employment has been very difficult for the past two years because of the discharge. I would also like to start college as soon as possible; hopefully they will guide me to the right path to receive as much help. Thank You.”

 Applicant’s Remarks: Taken from the DD Form 293 to the Board:

“I would like to thank the NAVY for the responsibility is has taught me. I have plans for a great future and have many goals I have to achieve in order to get the best out of life. The past two years have bee the longest years of my life, I have problems getting the right employment and opportunities. Thank you for reviewing my case and God bless our troops. Thank you.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 4)
Applicant’s NAVPERS 1070/604, dtd January 04, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19991022 – 19991208      ELS
         Inactive: USNR (DEP)     20000420 – 20000501      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20000502             Date of Discharge: 20031020

 Length of Service (years, months, days):

         Active: 03 05 18 (does not exclude lost time)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 160 days
         Confinement:              None

 Age at Entry: 18

Years Contracted: 4 (12 month extension)

 Education Level: 12                                 AFQT: 37

 Highest Rate: SK3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.5 (2)              Behavior: 3.0 (2)                          OTA: 3. 42

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



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 :

000421:  DAT waiver granted this date.

001012:  NJP for violations of UCMJ.
 Article 86: Absence without leave.
Article 92: Failure to obey order or regulation.
Article 107: False official statement.
Article 112: Drunk on duty.
Article 134: Drunkenness incapacitation for performance of duties through prior wrongful indulgence in intoxicating liquor or any drug.
         Award: Loss of seven (7) days pay and loss of “A” school, restriction and extra duty for 14 days. No indication of appeal in the record.

001012:  Retention Warning: Advised of deficiency (Violation of UCMJ Article 86: Absence without leave, Violation of UCMJ Article 92: Failure to obey order or regulation, Violation of UCMJ Article 107: False official statement, Violation of UCMJ Article 134: Drunkenness incapacitation for performance of duties through prior wrongful indulgence in intoxicating liquor or any drug.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
030204:  Applicant to unauthorized absence. [Extracted from DD214]

030227:  Applicant from unauthorized absence. [Extracted from DD214]

030402:  Applicant to unauthorized absence.

030826:  Applicant from unauthorized absence.

 030930:  Applicant requested an administrative discharge in lieu of a trial by court-martial. He consulted with counsel. The Applicant admitted to violating UCMJ, Article 86: Unauthorized Absence. 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 therefrom may have a bearing.

031007:  Charges preferred to SK3 S___.
         Charge I: violation of the UCMJ, Article 86:
         Specification : In that storekeeper Third Class L_ A. S_ Jr. (Applicant), U. S. Navy, Navy Region Southwest Transient Personnel Unit, San Diego, California, on active duty, did, on or about 2 April 2003, without authority, absent himself from his unit, to wit: USS PELELIU, located at Naval Station, San Diego, California, and did remain so absent until on or about 26 August 2003. [Date not contained in service record]

031015 :  The Commanding Officer, exercising GCMCA, approved the Applicant’s request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20031020 in lieu of a trial by court-martial (A and B) with a service characterization 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 contends that his discharge should be upgraded because it was based on “one isolated incident in 28 months of service.” The Applicant requested separation in lieu of trial by court-marital and understood that he could be discharged with a character of service of under other than honorable conditions. 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 retention warning and nonjudicial punishment proceedings for violations of Articles 86, 92, 107, 112 and 134 of the UCMJ. The Applicant subsequently had two periods of unauthorized absence totaling 160 days. The Applicant’s violations of Articles 92, 107 and 112 are serious offenses. The Applicant’s unauthorized absence for a period of over 30 days is also considered the commission of a serious offense. The Applicant’s conduct is a violation of the special consideration given the Applicant at his waivered-enlistment. 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.

The Applicant contends that he has “matured and learned from this one mistake.” 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 any post-service documentation for the Board to consider. 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. Relief denied.

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), 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, Article 92, failure to obey and order/regulation, Article 107, false official statement or Article 112, drunk on duty, 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

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