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NAVY | DRB | 2006_Navy | ND0600385
Original file (ND0600385.rtf) Auto-classification: Denied


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

ex-AN, USN
Docket No. ND06-00385

Applicant ’s Request
The application for discharge review was received on 20060110 . 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 20061116 . 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/or attached document/letter:
“ I feel my “Under Other Than Honorable Conditions” discharge was improper because I did not fully understand the consequences of that decision. I was young, immature, and did not have my priorities in order. Accepting the OHC discharge was expedient but not the right choice. I feel my legal counseling was skewed more toward taking the easy way out. I made the choice voluntarily but in retrospect I realize the Navy was not really interested in pursuing a Court Martial and all the preparation necessary. Perhaps if all the mitigating circumstances surrounding the charges against me had been exposed in a Court Martial, I would have received a more lenient sentence. I served one year and seven months on active duty without any prior incidents. My military evaluations, included in my attached military records, reflect good ratings by my evaluators. The incident that caused my OHC discharge was isolated and is not reflective of my military career.
I was granted an emergency leave on or about December 9, 2002 because of my mother’s heart bypass surgery. She passed away on December 27 th , 2002 as a result of complications from the surgery. I reported back to my duty station on January 5 , 2003. By the end of January I discovered my sister, Jessica who was 18, was pregnant. My mother was gone and my stepfather would no longer help her. I knew she was in a desperate situation and asked my Command Master Chief for a Hardship Discharge or relocation so I could help my sister. She had no one to help her. I was told I did not qualify for a Hardship discharge and a relocation request would probably not be approved. There was no attempt by anyone to offer options on how I could assist my sister and still stay in the Navy. Believing I had no other choice, I went AWOL and returned to Nebraska to help my sister. In May of 2003, I did attempt to contact my unit. I learned they were at sea. Since I had left the situation unresolved for so long, I decided to avoid dealing with it by staying in Nebraska. Naval authorities picked me up on July 27, 2003. Having just lost my mother and trying to deal with my sister’s problems all at the same time prevented my from making a sound decision. I realize now I will have to deal with a bad decision the rest of my life. I have made better decisions since leaving the Navy. I am employed and attending Peru State College on a part time basis. I still have a desire to serve my country and request my discharge be upgraded so I can enlist in the Army National Guard. I request the opportunity to make things right. ”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant , was considered:
Applicant ’s DD Form 214 (Member 4, Service 8, Service 7, Service 2)
Fifty-two pages from Applicant ’s service record
Evaluation Report and Counseling Record from January 12, 2002 to July 15, 2002
Evaluation Report and Counseling Record from January 28, 2002 to February 28, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20010927 - 20011003       COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20011004              Date of Discharge: 20031106

Length of Service (years, months, days):

         Active: 02 01 03 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 177 day s
         Confinement:              Unable to determine

Age at Entry: 1 9

Years Contracted: 4
Education Level: 12                                 AFQT: 38

Highest Rate: AN

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3 .0 ( 2 )               Behavior: 3 .0 ( 2 )                  OTA: 2 . 92

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 1910-106 (formerly 3630650).
Chronological Listing of Significant Service Events :

030203 :  Applicant to unauthorized absence at 0600 .
030303:  Applicant missed ship’s movement.

 030730 :  Applicant from unauthorized absence ( 177 da ys/apprehended).
         [Extracted from Charge Sheet.]

03073 0 :  Applicant to pretrial confinement.
         [Extracted from Charge Sheet.]

030813 :  Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial. Applicant acknowledged having consulted with counsel and acknowledged guilt to violating Article 86 of the UCMJ . The Applicant acknowledged understanding 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.

030820:  Charge preferred against Applicant for violation of the UCMJ, Article 86: In that Airman C_ L. M_ (Applicant), U.S. Navy, Navy Region Southwest Transient Personnel Unit, San Diego, California, on active duty, did, on or about 030203, without authority, absent himself from his unit, to wit: Strike Fighter Squadron NINE SEVEN, located at Naval Air Station, Lemoore, California, and did remain so absent until he was apprehended on or about 0307 3 0.

030827 :  The Commanding Officer, Navy Region Southwest Transient Personnel Unit, approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant ’s discharge.
030909:  Applicant found medically qualified for separation.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20031106 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 a signed statement, the Applicant requested an administrative discharge in lieu of a trial by court-martial. He consulted with counsel and was fully advised of the implications of his request. The Applicant acknowledged that he 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 admitted he was guilty of violating Article 86. While normally such a request is tendered after charges are preferred, in the Applicant’s case there is no question that he was in fact in an unauthorized absence status for nearly 6 months preceding his request. The Applicant’s current regret does not make his discharge improper or inequitable. 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 a punitive discharge is authorized if adjudged at a special or general court-martial. Relief is not warranted.

The Applicant contends his disciplinary problems were the result of stress caused by his family situation. The NDRB recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharges. In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. Relief denied.
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, 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), 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 ) 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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