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

 
ex-ACAA, USN
Docket No. ND03-00391

Applicant’s Request

The application for discharge review was received on 20030107.  The Applicant requests that the 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031215.  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 TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “To Whom It May Concern:

This letter is to respectfully request a change of my reentry code and type of discharge that I received from the Navy.  I entered the US Navy on 22 June 2000.  I reported to Naval Air Station Joint Reserve Base New Orleans, Louisiana as an Air Traffic Controller on 18 June 2001 and was discharged on 24 May 2002.  During that period I experienced some hardships in my personal life that developed problems in my work environment.  It started with a vehicle that my wife and I had financed before entering the Navy.  The vehicle broke down beyond repair while I was attached to my first duty station NAS Pensacola, Florida.  The only option we had was to purchase another car leaving that one temporarily unpaid.  Approximately two months after reporting to my new duty station, NAS JRB New Orleans, Louisiana, my department was informed of the situation.  I was called into the office on a daily basis from Monday to Saturday, for hours at a time.  I respectfully informed my department of the situation and told them that my wife and I were going to handle it to the best of our ability.  After about three weeks, the whole situation was completely resolved.  At that point the office prevented me from taking the 3rd class petty officer exam, which was very discouraging for me, but did not stop me from doing my job in a professional and dedicated manner.

During this time, my wife and I were going through our first pregnancy.  My wife had medical appointments every two weeks and due to the previous situation with my department, there was no cooperation for me to get my wife to the doctor.  At that time, my wife did not have a driver’s license, so I had to escort my wife to every doctor’s appointment.  Even appointments on my days off were impossible, because of the fact that they (my department) ordered me into the office then as well.  This caused my wife to miss many appointments and put undue stress on her pregnancy and our relationship.  Believing that everything would be ok, I went along with my job as normal.

Before my entering the military my mother had been ill and on or about 26 September 2001, her condition was worsening.  That same day before the beginning of work I informed my section leader about my mother’s illness and that I may need to take some leave.  He then informed me of certain information that the command and the department needed to know from the American Red Cross before my leave could be approved.  The American Red Cross message was received by the Quarter Deck Watch after normal working hours and the Command Duty Officer was notified.  After being notified myself by the QMOW, I then proceeded in filling out an emergency leave CHIT.  After doing so, the CDO was again notified and said that everything was ok.  He asked if I could leave the next morning due to the fact that it was extremely late.  I agreed, and he then informed me that I needed to take a copy of the CHIT to my department in the morning before my departure.  I then went home expecting the CDO to sign my leave CHIT.  Reporting to the Quarter Deck at about 0700, I picked up my CHIT and signed out on leave.  I then proceeded to my department to give them a copy.  They (my department) told me that I was lying about my mother being sick and that I was circumnavigating the system just to go on leave.  Those were the exact words they used, even with the information from the American Red Cross, who verifies everything with the hospital and doctor.  They also said that I had no leave to take, when, in fact they had an official copy of 14 days leave for participation in the Hometown Assistance Recruiting Program.  After that I was told that I was being sent to Mast for breaking various articles of the U.C.M.J.

I was sent to Mast on 29 October 2001.  There was a point were the captain asked my section leader, the department heads and department chiefs if they had anything to say about me in the matter.  Each and everyone spoke of me negatively as far as work was concerned, when in fact I was qualified and more than proficient in the knowledge of Base Operations/Flight Planning Dispatcher, which was my current position at NAS New Orleans.  I was found guilty and was busted in rank and given 60 days restriction at the MAA barracks in NAS Pensacola, Florida.  The barracks were dirty and there were holes in the walls.  The windows were broken and some still had broken glass hanging from the windowpane.  There was also no privacy in the main bathroom.  Men would walk in on ladies and visa versa.  By then my wife was due at any moment.  On 03 November 2001 I was informed that my son had been born two days two days before on 01 November and that I would be leaving the MAA barracks sometime soon to be with them.  I was then given 10 days of leave to be with my wife and newborn son and left 05 November 2001.  By that time I was already frustrated of living in that type of condition.  So when I finally got home, I made the wrong decision in not returning to complete my restriction at NAS Pensacola, Florida.

I stayed on unauthorized absence for about three months.  I did not want to leave my wife and especially my son, not even realizing that the longer I stayed, the more I was hurting not only myself but them too.  After counseling with my wife and family, I finally decided to make the right decision and turned myself in to my command, NAS JRB New Orleans on 13 February 2002, where I served the remainder of my 60 day restriction.  While waiting to be sent to court martial, I was offered to separate by “Other Than Honorable Conditions” instead of facing possible brig time.  My JAG informed me that this would be the best option and that I should take it.  I took the advice from my JAG and voluntarily separated from the US Navy on 24 May 2002 by 0TH.

I would now like to return to the US Military because the Navy is my life.  If I knew what I know now, I would have taken a different course of action and completed my original restriction in NAS Pensacola.  That is why I am writing this letter, to apologize to the US Navy and to ask that you help me achieve the goal I intended to from the start.  I was younger and made some wrong decisions that I regret ever having made.  I do not believe that it should be held against me forever.  Having truly learned my lesson and having matured, I respectfully request that my reentry code and type of discharge be changed in order for me to return to the military, to serve not only my country, but also the US Navy in the way I wanted to from the beginning.  I truly appreciate your time and hope I am given the chance to redeem myself and make the US Military, the US Navy, and America proud.

Thank You Very Much,

D_ R_ M_ Jr.”

Documentation

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

Copy of DD Form 214
American Red Cross message dated October 3, 2001
Letter of Recommendation from R_ G_
Letter from Applicant’s parents
Letter of Recommendation from S_ M_

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USA			991103 – 000601	COG
	Inactive: USNR (DEP)	000621		COG

Period of Service Under Review:

Date of Enlistment:  000622		Date of Discharge:  020524

Length of Service (years, months, days):

	Active:    01  11  03
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  Not Found in Record

Highest Rate:  ACAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*			Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  100

*No Marks Found in the service record.

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:

011030:	NJP for violation of UCMJ, Article 86: Unauthorized absence on 010926, violation of UCMJ, Article 91 (2 specs): Willful disobedience of a senior chief and chief petty officer on 020926, violation of UCMJ, Article 92: Failure to obey regulation on 010926, violation of UCMJ, Article 107: False official statement on 010926.
	Award: Forfeiture of one half months pay for 2 months, restriction for 60 days, reduction to ACAA.  Forfeiture suspended for 2 months.  No indication of appeal in the record.

011030:	Retention Warning:  Advised of deficiency (Unauthorized absence, willful disobedience of a senior chief petty officer, willful disobedience of a chief petty officer, failure to obey lawful general regulation and false official statement), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

011127:	Applicant declared a deserter.

020304:	Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ), Article 85: Unauthorized absence from 011114 to 020213.

020412:	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 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 011114 to 020213.  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. 

020503:	The Commanding 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 20020524 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.  On 20020412, 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 evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident 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.  Relief not warranted.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

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, 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 “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