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

 ex-FA, USN
Docket No. ND02-00932

Applicant’s Request

The application for discharge review, received 020618, requested that the characterization of service on the discharge be changed to general (under honorable conditions) and the reason for the discharge be changed to Re code.  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 030331.  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 1910-106 (formerly 3630650).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  I am requesting a change in my reentry code for two reasons.  First, I would like to be allowed to serve in the United States Navy again.  I did not realize that when I made the choice of going U.A. that I was messing up my life permanently.  I realize now that the Navy is the only choice for a man like me.  I realize now that going U.A was the most foolish thing that I had ever done, and I am respectfully requesting a second chance at my dream.  I am willing to do what ever it takes to be a part of the Navy again. The second reason that I am requesting a change I my re entry code is because I believe the reason I was discharged was for doing an honorable thing in a dis honorable way.  When I returned home on leave, after boot camp and FN ATD School, I found out that my parents were in a fierce court battle for two of my younger brothers and my younger sister.  And on top of that my father was having medical problems.  I was confused and severly torn between my family and the Navy.  In the confused state that I was in I chose to stay and help out my family.  I was also afraid because when I had realized what I had done.  I knew that I had made more problems for myself and my family.  Now, I know that I am more mature and more responsible and I would like chance of rejoining the U.S. Navy.  Thank you for your consideration and time.

Documentation

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

Copies of DD Form 214 (2)

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	991215 - 000119	COG

Period of Service Under Review:

Date of Enlistment:  000120		Date of Discharge:  010702

Length of Service (years, months, days):

	Active:    00  06  25 (Excludes lost time)
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  8			AFQT:  53

Highest Rate:  FA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  353(000519-010507)

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 1910-106 (formerly 3630650).

Chronological Listing of Significant Service Events:

000519:	Applicant to an unauthorized absence status.

010507:	Applicant from an unauthorized absence status; apprehended by authorities (353 days).  Applicant to pre-trial confinement.

010611:	Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Did on or about 000519, without authority, absent himself from his unit, to wit: USS HARPERS FERRY (LSD 49), located at Naval Station, San Diego, California, and did remain so absent until he was apprehended on or about 010507.

010614:	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: from on or about May 2000 until on or about 4 May 2001.  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.

010614:	Applicant's defense counsel endorses request for administrative discharge under other than honorable conditions in lieu of trial by court-martial.  Counsel states that an other than honorable discharge is a fitting charac- terization for the Applicant's behavior.

010615:	Commanding Officer, Navy Region Southwest Transient Personnel Unit, San Diego, CA (officer exercising GCMCA) approved the request for an administrative separation in lieu of a trial by court-martial and directed Applicant’s discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 010702 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).

Issue 1:  The Applicant contends that his offense was justifiably committed in order to address a critical family situation.  The underlying reasons for the Applicant's conduct, however honorable he contends, does not mitigate his violation of the UCMJ.  The Applicant's misconduct, as established through his acceptance of administrative separation in lieu of trial by court-martial, warranted discharge under other than honorable conditions.  The records the Board reviewed showed the separation process to be proper and equitable.  Relief on this basis is denied.

The Applicant is advised that changes to reenlistment codes are beyond the authority of the NDRB and that he should address this issue to the Board for Correction of Naval Records.  The Applicant is further advised that reenlistment codes do not necessarily bar a former service member from re-entering service and that he should address the issue of a waiver to the applicable service recruiter.

The following is provided for the edification of the Applicant.  There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.  However, the NDRB is authorized to consider post-service factors in the recharacteriza-tion of a discharge.  Outstanding post-service conduct, 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 may be considered.  Verifiable proof of 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, and certification of non-involvement with civil authorities are examples of verifiable documents that may be provided to receive consideration for relief based on post-service conduct.  At this time, the Applicant has not provided such documentation for the Board to consider an upgrade.

The Applicant 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.  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 29, effective 
11 Jul 2000 until 21 Aug 2002, 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, Absence without leave (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 “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