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

ex-FA, USN
Docket No. ND01-00552

Applicant’s Request

The application for discharge review, received 010321, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010719.  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: UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 3630650.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  While I understand my superior's discretion and decision to discharge me with no possibility for re-entry, I also understand that under Military and Veteran's Code 261, a discharge based on absence without leave, for a period of 90 days or more, shall be a discharge under honorable conditions.  As noted above, my absence was for a period of 47 days.  Accordingly, I am hopeful that my discharge can be upgraded to allow my reentry into the United States Military Reserves, where I cannot only pursue my original dream of service to this country, but also rebuild the trust which was first placed in me by the United States Navy.

Documentation

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

Declaration from the applicant
Letter from the administrator, Ninos Latinos Unidos, Foster Family Agency dated September 17, 1997
Letter applicant's mother's doctor dated August 30, 1997 and traslation
Letter from Clinica Santa Isabel dated September 4, 1997
Copy of DD Form 214
Character/job reference dated February 6, 2001
Character reference dated March 6, 2001
Character/job reference dated March 7, 2001
Character reference dated March 12, 2001
Character reference dated March 14, 2001
Letter from applicant dated May 9, 2001
Copy of applicant's request for administrative discharge in lieu of trial by court-martial dated October 10, 1997
Copy of charge sheet dated October 10, 1997
Copy of Travel certification, separation without orders dated November 6, 1997 (2 copies)
Copy of Letter of Appreciation dated November 27, 1996
Copy of certificate of appreciation
Copy of certificate of promotion dated February 4, 1997

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	961001 - 970505	COG

Period of Service Under Review:

Date of Enlistment:  970506		Date of Discharge:  971106

Length of Service (years, months, days):

	Active:    00  06  01
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  11			AFQT:  42

Highest Rate:  FA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*	Behavior:  NMF*		OTA:  NMF*

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  49

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority:  NAVMILPERSMAN, Article 3630650.

Chronological Listing of Significant Service Events:

970508:	You are being retained in the Naval service, despite your fraudulent induction as evidenced by your failure to disclose required basic enlistment eligibility information.  This decision is based on the information you provided the Recruit Quality Assurance Interviewer and if it is found that additional information has not been disclosed, this waiver is void and you could be subject to other judicial or administrative proceedings, ie., speeding, 9/96.  Paid $350.  Improper turn, 12/93.  Paid $175.  Disobeying traffic sign/driving without license,3/92. Paid $100.

971001:	Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Unauthorized absence (UA) from 0600, 18Aug97 to 1226, 6Oct97 (49 days/surrendered).

971010:	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 offense(s) with which he was charged, and admitted he was guilty of all the charges preferred against him.  Specifically, he admitted to violating UCMJ, Article 86: Unauthorized absence from 0600, 18Aug97 to 1226, 6Oct97.  The applicant waived his right to counsel.  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.  

971106:	DD Form 214: UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL; authority: MPM, Article 3630650.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 971106 under other than honorable conditions in lieu of a trial by court-martial (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

In a signed statement, the applicant requested an administrative discharge under other than honorable conditions in lieu of a trail 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: absent without leave.  

In the applicant’s issue 1, the Board found that the applicant suggests he should receive an honorable discharge because his unauthorized absence was less than 90 days.  There is no law or regulation that provides for the upgrade of an unfavorable discharge based on unauthorized absence of less than 90 days, or on the passage of time or good conduct in the civilian life subsequent to leaving the Service.  The Board reviews the propriety (did the USN/USMC follow its own rules in processing the applicant for discharge) and equity (did the applicant receive a discharge characterization in keeping with the USN/USMC guidance or was the characterization typical of other service members being separated for the same reason) of each applicant’s discharge.  Finally, the Board is authorized to consider post-service factors in the recharacterization of a discharge (what has the applicant done since discharge to become a contributing member of his community and to society in general).  No relief will be granted based on this issue.  The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 
03 Oct 96 until 11 Dec 97, 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, 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 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  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.

E.  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 “afls10.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