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

 ex-AA, USNR
Docket No. ND03-00397

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 general/under honorable conditions.  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 3630650.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  The day I went AWOL I received a phone call saying my mom had a heart attack.  I put in for emergency leave but was denied.  I am sorry for leaving my ship but I was 19 years old and scared for my mother.  My farther has not been in the picture for a long time, he is more so a good friend.  So my mother only has her kids.  It has been 7 years and I only want to provide for my family and serve my community by being hired by Chicago police department I ask for your help.  Please read attachments thank to you K__ 
P. W__ ”

2.  “On the day I went AWOL I received a phone call saying my mother had a heart attack. I immediately put in for emergency leave, but was denied. I am sorry for leaving my ship but, I was 19 years old and scared for my mother. My parents were divorced when I was three so my mother only has me and my sister. After I attended to my mother for a while I drove up to Great Lakes Naval base and tried to explain I needed a little more time. I told them I was caring for my mother who just had an heart attack and who is epileptic. (suffers from seizures) They would not hear my side and only stated I would be back on the ship by morning. I told the Officer in charge again that I needed a little more time. He said no chance. I told him then I will be at my mothers do what you have too. It has now been over 7 years and my only wish is to provide for my family. I am married and have a child on the way. My mother is doing very well she is on some of the newest med’s and has not had a seizure for a long time. In my eyes at 19 years old I had no other choice. I am truly sorry for leaving but had every intention of returning to my ship. I know what I did when I was 19 was not right I would never do that again and wish I could go back and do things differently, however I cannot. I am sorry for my actions. I have worked full time for the past six years as a motorcycle mechanic. I also went to night school at Triton College and have earned 60 credit hours. I am only three classes away from receiving my AS degree in Fire Science. I am asking the Navy for help. I believe that the discharge I received was improper because I was never given an opportunity to plead my case. The Navy never asked why I went AWOL. A Naval lawyer came to me and said sign this you have no other options. If I would of known my rights I would have not excepted the lawyers agreement and would have pleaded my case to the judge. If I was told my rights I would have fought and stayed in the Navy and later been discharged Honorably.”

3.  “My guilty plea. When I was told by the Naval lawyer that I had no other options she had me sign a paper which I did not understand. The document said that I was requesting discharge under Other Than Honorable In Lieu Of Trial By Court-Martial. She did not explain any of this to me. She only said that I was receiving an OTH because I did not serve my full term for the Navy, but I never requested any discharge. She told me that the Navy no longer wanted me because I was AWOL. She also never explained to me what In Lieu Of Trial By Court-Martial was. I believe I was taken advantage of because I was fresh in the military and did not know my rights and I was a young kid who did what the lawyer asked. I have never made trouble I grew up in Catholic schools with good grades and always did my best. I wish that when I was 19 I would of took the time to learn my rights. I was cheated out of my career in the Navy. Therefore, I did not receive a fair discharge or separation code because I was with held information when I was forced to sign my discharge at nineteen years of age. I believe my guilty plea should not be held up because of being swindled into signing it. My grandfather forgave me, my pastor forgave me, my mother forgave me, however I still have not forgiven myself for not knowing my rights. I would not have taken that plea if I was aware of being able to stay in. I loved being out to sea on the George Washington watching the dolphins swim along the ship. Looking into the stars at night which sparkled like Christmas lights on a tree and watching F-14’s taking off from the flight deck. I believe my discharge should be up graded to Honorable with no benefits, my re-entry code changed, and by guilty plea wiped off my record. Can you help? I respectfully request the proper discharge from the United States Navy while taking into consideration everything I have explained. Thank You, From K_ P. W_”

Documentation

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

Letters from Applicant (2)
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	None
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  941128		Date of Discharge:  960325

Length of Service (years, months, days):

	Active:    00  07  15  (Does not include UA time)
	Inactive:  00  01  27

Age at Entry:  19			Years Contracted:  8

Education Level:  12			AFQT:  39

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NOB*		Behavior:  NOB		OTA:  NOB

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  197

*None obtained from 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 3630650.

Chronological Listing of Significant Service Events:

950124:	Ordered to active duty for 36 months under the Airman Apprenticeship Training program.

950712:	UA over regular liberty from USS GEORGE WASHINGTON (CVN-73).

950712:	Missed sailing of USS GEORGE WASHINGTON (CVN-73).

950814:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 950814 having been an unauthorized absentee since 0715, 950712 from USS GEORGE WASHINGTON (CVN-73).

951205:	Report of Return of Deserter.  Applicant surrendered to military authorities on 951201 (1745) at TPU GREAT LAKES IL.  Returned to military control 951201 (1745).  Transferred to USS GEORGE WASHINGTON (CVN7).

951206:	UA from TPU NORVA.

951222:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 951206 having been an unauthorized absentee since 0001, 951206 from USS GEORGE WASHINGTON (CVN-73).

960208:	Report of Return of Deserter.  Applicant apprehended by civil authorities on 960203 (0041) at Greenwood, IL. Returned to military control 960205 (0240).

960308:	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.  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.  

960311:	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 19960325 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).

Issues 1-3.  On 19960308, 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, to enhance employment opportunities, or for 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 9, effective 
22 Jul 94 until 2 Oct 96, 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 “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