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NAVY | DRB | 2006_Navy | ND0600236
Original file (ND0600236.rtf) Auto-classification: Denied


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

ex-FCSN, USN
Docket No. ND06-00236

Applicant ’s Request
The application for discharge review was received on 20051116 . 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 20061130 . 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:
“ 1) My discharge was inequitable because it was based on one isolated incident in 24 mos of service.
2) Prior to this incident, Applicant display 3.6 or better on all evaluations.
3) Applicant served bravely in Operation Desert Shield/Storm.
4) Applicant successfully completed FC “A” school at the top of the class. Also chose sea duty in lieu of being awar ded a “C” school.
5) Applicant wishes to move on with life and become a productive member of society. Also wishes to enjoy status as denoted by a Veteran. ”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant , was considered:
Letter from Applicant, dtd February 9, 2006
 Letter from Applicant , dtd February 12, 2006
 Applicant ’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19891025 - 19891210       COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 19891211              Date of Discharge: 19930122

Length of Service (years, months, days):

         Active: 0 3 0 1 12 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 567 day s
         Confinement:              None

Age at Entry: 1 9

Years Contracted: 4 ( 24 -month extension)

 Education Level: 12                                 AFQT: 99

Highest Rate: FC 3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3 . 8 ( 1 )                        Behavior: 3.6 ( 1 )                  OTA: 3.6 0

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/ S eparation in lieu of trial by court martial, authority: MILPERSMAN, Article 3630650.
Chronological Listing of Significant Service Events :

891211:  Retention Warning: Advised of deficiency (Non swim qualified) . N otified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
891213 :  Applicant briefed on , and acknowledged understanding of, Navy's policy of drug and alcohol abuse.
910411:  Applicant apprehended by civilian authorities at Saddlebrook, NJ on charges of possession of narcotics and narcotic paraphernalia with intent to distribute. Applicant held in Bergen County, New Jersey jail pending trial.
          [Extracted from NAVPERS 1070/613, dtd 910514.]
91041 1 :  Applicant to unauthorized absence at 1800 .
         
Not dated :       Applicant r eleased on bail, date unknown. Civilian authorities reported Applicant failed to a ppear in court and jumped bail.
         [Extracted from USS Detroit msg to CHNAVPERS, dtd 920513.]
910520:  Applicant apprehended by civil authorities at 1700, 920520.
         [Extracted from USS Detroit msg to CHNAVPERS, dtd 921103.]
921030 :  Applicant returned to military control a t 1215 ( 567 d ays/apprehended).
921224:  Applicant found medically qualified for separation.

 93010 5:  Charge preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86 , Specification: In that Fireman Control Technician Third Class A_ P_ ( Applicant ), III, U.S. Navy, Transient Personnel Unit, Naval Station, Philadelphia, Pennsylvania, on active duty, did, on or about 11 April 1991, without authority, absent himself from his unit, to wit: USS DETROIT, located at Earle, New Jersey, and did remain so absent until apprehended on or about 30 October 1992 .
930115 :  Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial. Applicant further requested administrative reduc tion to pay grade E-3. Applicant acknowledged having consulted with counsel and being fully advised of the implications of request. The Applicant acknowledged underst anding the elements of the offense and admitted he was guilty of violating the UCMJ, Article 86 . The Applicant acknowledged underst anding 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.

93011 5 :  The Commanding Officer, Transient Personnel Unit, as SPCMCA, approved the Applicant’s 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 was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19930122 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).

In the Applicant ’s issue s , the Board found that i n 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 Article 86. The NDRB advises the Applicant that certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline. Notwithstanding a servicemember’s prior record of service, v iolations of Article 86 are considered serious offenses and a punitive discharge is authorized if adjudged at a special or general court-martial. The evidence of 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 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.

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 any post-service documentation for the Board to consider. 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. 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), effective 15 Aug 91 until
04 Mar 93, 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, Article 86, absence without leave ( 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction . You should read Enclosure (5) of the Instruction 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 Instruction 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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