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NAVY | DRB | 2005_Navy | ND0501562
Original file (ND0501562.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. ND05-01562

Applicant’s Request
The application for discharge review was received on 20050923. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to entry level separation or uncharacterized. 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 20060721. 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 and attached document/letter:

1. “On 1990/03/08 I enlisted in the Navy under the impression that I was going to be an Intelligence Specialist. My recruiter led me to believe the issues that were brought up while trying to get my security clearance wouldn’t be an issue. I was also informed, during my meeting to see if I would get the proper security clearance, that when asked if I had mentioned these issues my recruiter told them I had never mentioned these issues although I had. The issues I mention are, the fact that I was in debt when I enlisted, a legal issue my step-brother had had, and the fact that I sometimes get severe headaches. As I have come to learn, dishonesty on the part of recruiters was pretty common, and something that I should have been looking out for myself. Therefore, when my security clearance was denied, I chose another specialty. I was given four options, and chose what I thought would be the better of these options. Soon after starring my training at Advanced Electronic Technical Core school I realized that I had no interest at all in studying electronics. I found the subject and my classes very boring, and was having difficulty concentrating and staying awake in class. At this point I began looking into changing my specialty again. Time after time I was informed that it could not be done. Unsure of what to do next, I made what I know now to be a huge mistake. I left base without leave on 1999/10/28.”

2. “On 2000/01/08 I returned to Great Lakes, IL. in order to turn myself in for unauthorized absence. Over the next few days I met with a qualified military lawyer, along with three other people who had also left base without authorization. We were informed of the position we had put ourselves into, and advises of our rights. During one of these meetings we were told, if we wanted to reenlist in another branch of the military we would be able to do so, but the Navy didn’t want us. I was discharged from the Navy on 2000/01/27. In January of 2003 went to talk to an Army recruiter. I was interested in returning to the military to finish what I had started. It was at this time that I learned what a Reenlistment Code was, and that I could not reenlist with an RE-4. In August of 2004 I applied to have my Reenlistment Code upgraded. I was denied, and informed that due to my Character of Service, my Reenlistment code could not be changed.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19990129 – 19990307               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19990308             Date of Discharge: 20000127

 Length of Service (years, months, days):

         Active: 00 10 19 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 73 days
         Confinement:              none

 Age at Entry: 21

 Years Contracted: 4 (24 month extension)

 Education Level: 12                                 AFQT: 90

 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): None.
* Not Applicable


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 :

991028:  Applicant to unauthorized absence at 0600 on 991028 from SSC GLAKES, IL.
000109:  Applicant surrendered to military authority at TPU GLAKES, IL at 2200, 000109. Returned to military control TPU GLAKES, IL at 2200, 000109. Retained onboard for disciplinary action/disposition.
000110:  Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Unauthorized absence from 0600, 991028, to 2200, 000109.

000110:  Applicant voluntarily requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial. He was afforded an opportunity to consult with counsel and waived that right. The Applicant received a summary of the evidence pertaining to the offense to which he admitted guilt. Specifically, he admitted to violating UCMJ, Article 86: Did on or about 0600, 991028 without authority, absent himself from his organization, to wit: Service School Command, located at Great Lakes, IL, and did remain so absent until on or about 2200, 000109. 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.

000110:  Commanding Officer, Transient Personnel Unit, Great Lakes, approved the Applicant’s request for discharge under other than honorable conditions in lieu of trial by court-martial. Commanding Officer’s comments: “SA W_ (Applicant) was afforded the opportunity to consult with counsel, by knowingly, intelligently and willingly waived that right. He has been interviewed and it is considered that he does not possess the potential for further naval service.”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20000127 in lieu of a trial by court-martial (A) 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 (B and C).
The Applicant requests a change in his characterization of service to uncharacterized. By regulation, members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an uncharacterized or entry-level separation characterization of service. The Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial well after the 180-day limitation. A change to uncharacterized would be inappropriate. Relief not warranted.

The Applicant contends that his recruiter’s misleading statements precipitated his misconduct thus making his discharge improper. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention of recruiter misconduct. In the absence of incriminating evidence, the Board concluded that the government’s agents acted in good faith, proceeded within the bounds of the law, and conformed their behavior to appropriate standards during the Applicant’s Naval service and subsequent administrative processing. The Board advises the Applicant that he bears the burden of establishing his issues through the presentation of substantial and credible evidence. The Applicant’s statements alone do not provide sufficient basis to grant relief. Relief denied.

The Applicant is advised that Board has no jurisdiction over reenlistment, reentry, or reinstatement into any of the Armed Forces. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Since this issue does not serve to provide a foundation upon which the Board can grant relief, relief on this basis 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 post-service accomplishments or any other evidence related to the 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), Change 18, effective
12 Dec 1997 until 10 July 2000, Article 1910-106 (formerly 3630650), SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 C. 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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