DEPARTMENT OF THE NAVY
 NAVAL DISCHARGE REVIEW BOARD (NDRB)
                     DISCHARGE REVIEW
                   DECISIONAL DOCUMENT

ex-RMSR, USN
Docket No. ND00-01061

Applicant’s Request

The application for discharge review, received 000918, requested that the characterization of service on the discharge be changed to Honorable.  The applicant requested 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 010615.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/EXPIRATION OF ENLISTMENT (NON-RETENTION ON ACTIVE DUTY), authority: NAVMILPERSMAN, Article 1910-104.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I am requesting an upgrade, because I want to go to school.  I was denied my educational benefits and I feel this is unjust.  I joined the Delayed Entry Program 20 June 94, and started active duty 6 June 95.  I serviced 36 months continuously until 16 June 98, when I went AWOL due to a family problem that my chain of command could not help me with.  I returned to active duty 16 Oct 98, when I felt my family problems were stable.  I was charged with 10 days in the NAS Jacksonville brig and was reduced to the rank of E-1.  I was released from the brig after serving 8 days with 2 days off for good behavior.

I served the rest of my 4 year term plus the 122 days I made up with no other incidents and was released from active duty 07 Oct 99, with a Genera/Under Honorable Conditions discharge.  

In June of 2000 I started school at Masters Institute and filled out the paper work to get my VA education benefits and I was denied because of my discharge.  I really need the benefits to help me through school.  I paid my 1200.00 at the beginning and I served 4 years 4 months.  I know going AWOL was wrong, but I made up the time.  I feel that I'm being punished for the same incident twice by the VA denying me my educational benefits.  Please consider upgrading my discharge, so I can finish school and provide for my family.  Than you for taking the time to review my records.

Documentation

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

VA ltr of Jul 24, 2000 concerning school benefits
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	940620 - 950606	COG

Period of Service Under Review:

Date of Enlistment:  950607		Date of Discharge:  991007

Length of Service (years, months, days):

	Active:    04  04  01 (Does not exclude lost time)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  79

Highest Rate:  RM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.43 (7)	Behavior:  2.43 (7)		OTA:  3.21 (5.0 EVALS)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, JSCM, JMUA

Days of Unauthorized Absence:  121 

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/EXPIRATION OF ENLISTMENT (NON-RETENTION ON ACTIVE DUTY), authority: NAVMILPERSMAN, Article 1910-104.

Chronological Listing of Significant Service Events:

980804:	Report of Declaration of Desertion:  Declared a deserter 16 Jul 98 having been an unauthorized absentee since 0635, 16 Jun 98 from NAMTRAGRUDET Cecil Filed, FL.

981020:	Report of Return of Deserter:  Surrendered to military authorities at 1430 hours, 16 October 98 (121 days), retained onboard NAMTRAGRU DET Cecil Field, FL for disciplinary action/disposition.  

981215:	Special Court Martial
Violation of UCMJ, Article 86: Unauthorized absence.
	Award:  Confinement 10 days, reduction to E-1.

991007:	Discharged with a General (Under Honorable Conditions) by reason of expiration of active duty obligation due to non-retention on active duty (failure to meet reenlistment eligibility).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 991007 with a General (Under Honorable Conditions) for expiration of active duty obligation due to non-retention on active duty (failure to meet reenlistment eligibility) (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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).

Issue 1.  The applicant states he has been denied his educational benefits because of his discharge and he wants these benefits to go to school.  The applicant went to Special Court Martial for violation of UCMJ, Article 86 (unauthorized absence for 122 days).  He received a General (Under Honorable Conditions) discharge, which the NDRB determined was proper and equitable.  Normally, to upgrade an individual’s discharge, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct.  The applicant did not provide any of these documents.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 until 26 March 2000, Article 1910-104 (previously 3620150), Separation by Reason of Expiration of Active Obligated Service (EAOS).

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 "afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023