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NAVY | DRB | 2006_Navy | ND0600191

Original file (ND0600191.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. ND06-00191

Applicant’s Request

The application for discharge review was received on 20051107 . 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 designated the Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 200609 27 . 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:

“ Please change the reenlistment code so I can re-enter the military .
I had a DUI while on duty. Since then, I have not been in any trouble. I have been employed and have not had any problems with alcohol since the DUI. Please correct the enlistment code so I can reenlist in the military. ”

Additional issues submitted by Applicant’s counsel/representative ( Disabled American Veterans):

“Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Under Other Than Honorable Conditions discharge to Honorable with a change of the Re-Code 4.

The FSM served on active service from June 27, 1994 to April 20, 1995 at which time he was discharged in lieu of trial by Court Martial, with an RE- Code 4.

The FSM makes his contentions on application and shares his belief that he has changed for the better, is no longer dependant on alcohol, and has maintained sobriety and employment since his discharge. Although there is no evidence in the file a reference is made to two years honorable service, prior to his Navy service, in the United States Army. It is believed that consideration may not have been given to this honorable service in light of the limited Navy service, and that if it had a General Under Honorable Conditions discharge would have been more appropriate.

This creates a need for a review of the application of the standard, for the Board to determine that the applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 D, Sect. 407, part 3.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D.

We believe that insufficient consideration is shown in regards to the applicant’s character. A summary of this individual’s character and skill during and after their discharge is represented by the statements provided by those who have known and still know the applicant. It is because of this that we maintain that the current character of discharge is to harsh when compared to the overall record of service and that a General Under Honorable Conditions discharge would more appropriately reflect the quality of service as shown by the record. As for the issue of a change of the RE-Code, we leave that to the Board for a fair determination as reflected by the need for any change of the current status.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant. ”

Documentation

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

Letter from D_ W_, 41 ^st Senatorial District, Senate of Pennsylvania, dtd August 9, 2005
Character Reference ltr from A_ W. C_, dtd April 11, 1995
Letter from B_ S_, Director, Department of Veterans Affairs, dtd August 2, 2005 (2 pages)
Standard Transfer Order, dtd April 13, 1995
Applicant’s DD Form 214
Cover letter from Disabled American Veterans, dtd October 27, 2005

PART II - SUMMARY OF SERVICE

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

         Inactive:        920608 - 920814 HON
                           920815 - 940626 HON

         Active: None

Period of Service Under Review :

Date of Enlistment: 19940627              Date of Discharge: 19950420

Length of Service (years, months, days):

         Active: 00 0 9 24
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: None
         Confinement:              None

Age at Entry: 1 9

Years Contracted: 4

Education Level: 12                                 AFQT: 52

Highest Rate: SA

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

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 3630650.

Chronological Listing of Significant Service Events :

940622 : Pre-service waiver for drug s ( one time mari juana use) granted.

941210: Applicant arrested for driving under the influence. Applicant was processed and held on $250.00 bail to appear in Honolulu District Court on 941211 at 0830. No further information found in service record.

950112: Charges referred to special court-martial: Charge I: violation of the Uniform Code of Military Justice (UCMJ) Article 111: Specification: In that Seaman Recruit S_ L. G_(Applicant), U.S. Navy, Commander, Submarine Squadron 1, Pearl Harbor, Hawaii, on active duty, did, at Honolulu, Hawaii, on or about 10 December 1994, near Kuhio Avenue and Kanekapolei Street, Honolulu, Hawaii, operate a vehicle, to wit: a U.S. Navy Dodge Van, Vehicle Identification No. 93-30395, while drunk.
Charge II: Violation of the Uniform Code of Military Justice, Article 134: Specification: In that Seaman Recruit S_ L. G_(Applicant), U.S. Navy, Commander, Submarine Squadron 1, Pearl Harbor, Hawaii, on active duty, the driver of a U.S. Navy Dodge Van, at the time of an accident in which said van was involved, and having knowledge of said accident in which van was involved, and having knowledge of said accident did, at Kuhio Avenue, Waikiki, Hawaii, on or about 10 December 1994, wrongfully leave the scene of an accident without making his identity known.

950306 : 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 stated he understood the elements of the offenses with which he was charged, and admitted he was guilty of all the charges preferred against him. Specifically, he admitted that he was guilty of Charge I and its specification and that he was guilty of C harge II and its specification. The Applicant stated he was completely satisfied with the counsel he had received. 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.

950315: Commander, Submarine Squadron 1 forwarded request recommending approval.

950327 : Commander, Submarine Force, U.S. Pacific Fleet approved the request and directed the administrative separation of Applicant in lieu of a trial by court-martial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950420 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 requested an upgrade of his discharge to honorable. 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 therefrom may have a bearing. The Applicant stated he understood the elements of the offenses with which he was charged. He admitted he was guilty of violating Articles111 (drunken operation of a vehicle) and 134 (Fleeing scene of an accident). Violations of Articles 111 and 134 are considered serious offenses for which a punitive discharge is authorized at courts martial. Relief denied.

The Applicant also requested that his reenlistment code be changed. 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.

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), Change 9, effective
22 Jul 94 until 2 Oct 96, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR 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 Articles111 (drunken operation of a vehicle) and 134 (Fleeing scene of an accident) 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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NAVY | DRB | 2006_Navy | ND0600191

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