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NAVY | DRB | 2006_Navy | ND0600568
Original file (ND0600568.rtf) Auto-classification: Denied


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

ex-AA, USN
Docket No. ND06-00568

Applicant’s Request
The application for discharge review was received on 20060320 . 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 20070125 . 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 ization 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 - ISSUES AND DOCUMENTATION


Decisional Issues :

No issues were submitted by the Applicant.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (member 1 and member 4 )
Character Reference ltr from Mrs. D_ O_, dtd February 10, 2006
Ltr from Applicant, undated
Character Reference ltr from D_ H. M_, Mayor, Village of Tularosa, dtd February 10, 2006
Character Reference ltr from M_ J. F_, General Education Instructor, dtd February 2, 2006
 Character Reference ltr from S_ F_, IT Instructor, ITT Technical Institute, dtd February 16, 2006
Character Reference ltr from V_ S. S_, dtd February 17, 2006
Character Reference ltr from M_ T_, Village of Tularosa, Trustee, dtd February 16, 2006
Character Reference ltr from J_ P. S_, dtd February 15, 2006
 Character Reference ltr from T_ C. P_, dtd February 16, 2006
Character Reference ltr from G_ B_, dtd February 10, 2006
Character Reference ltr from J_ M. B_, dtd February 12, 2006
Ltr from Applicant (3 pages)
8 pages from Applicant’s service record
Character Reference ltr from C_ A. M, RN, Administrator
Character Reference ltr from B- RW/DNS, dtd March 19, 1998
 Ltr from Applicant with copy of a cashiers check showing restitution , dtd October 14, 1997 (2 pages)
Ltr from AT&T, A_ B_, Representative, dtd September 15, 1997
Table of Contents

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19961026 - 19970302       COG
          Active: None

Period of Service Under Review :
Date of Enlistment: 19970303              Date of Discharge: 19980213

Length of Service (years, months, days):

          Active: 00 11 11
         Inactive: None

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

Age at Entry: 19

Years Contracted: 4

Education Level: 12                                 AFQT: 69

Highest Rate: AA

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NOB                  Behavior: 1 .0 ( 1 )                          OTA: 1 .00

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): None


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 :

971209:  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 to violating UCMJ, Article 121: larceny and Article 134, false pretenses, obtaining service under. 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. [ Extracted from documents provided by the Applicant.]

971211:  LT L_ B_, JAGC, USNR, Trial Counsel forwarded Applicant’s request recommending approval . [ Extracted from documents provided by the Applicant.]

971223 :  Commanding Officer, forwarded Applicants request to the Chief of Naval Education and Training recommending approval . [ Extracted from documents provided by the Applicant.]

Unknown:         Student Under Instruction Evaluation : Other Than Honorable Discharge in Lieu of Tr i al by court-martial approved for violation of the UCMJ, Article 121, and Article 134 .
         [Extracted from Evaluation Report & Counseling Record, dtd 970509 to 980213].
980213:  DD Form 214: Applicant discharged with under other than honorable conditions in lieu of trial by court-martial.

Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19980213 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 Board presumed regularity in the conduct of governmental affairs (E).
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 UCMJ Article s 121 (larceny) and 134 (False Pretenses, Obtaining Services Under). Violations of Articles 121 and 134 are considered serious offenses for which a punitive discharge is authorized at courts-martial. Relief denied.

 The Applicant stated that he has a service connected medical condition for which he has been denied treatment. 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 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 18, effective
12 Dec 1997 until 10 July 2000, 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 s 121 (larceny) and 134 (False Pretenses, Obtaining Services Under).

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 .

 E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .

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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