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

 
ex-AN, USN
Docket No. ND03-00503

Applicant’s Request

The application for discharge review was received on 20030127.  The Applicant requests 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 20040812.  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.  “I have admitted my mistakes and paid the price of not being able to serve my country, just like my grandfather and uncles who served this country.”

2.  “I would like to have a second chance to be in the Navy, so I would like to have my discharge upgraded.”

3.  “I would also like to redeem my self with service to the Navy.”

Documentation

In addition to the service record, NO DISCHARGE PACKAGE AVAILABLE, the following additional documentation, submitted by the Applicant, was considered:

Letter from Applicant dated January 19, 2003

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	980928 - 981009	COG

Period of Service Under Review:

Date of Enlistment:  981010		Date of Discharge:  020719

Length of Service (years, months, days):

	Active:    03  09 10
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (12 months extension)

Education Level:  11			AFQT:  78

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.66 (3)	Behavior:  2.00 (3)		OTA:  2.72

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  433

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:

001117:	UA from 0600, 001117.

001119:	Surrendered onboard USS JOHN F. KENNEDY (CV-67) 0600, 001119 (2 days/S).

001215:	Retention Warning:  Advised of deficiency (Your CO’s NJP held on 001215 for VUMCJ, Article 86 (3 Specifications), Unauthorized absence, and 91, disobeying a lawful order), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

001215:	NJP for violation of UCMJ, Article 86: (3 Specifications), Specification 1: Absent himself fro his unit from on or about 001016, until on or about 001021; Specification 2: Absent himself from his unit from on or about 001120, until on or about 001121; Specification 3: Absent himself from his unit from on or about 001207, until on or about 001208, violation of UCMJ, Article 91: Willfully disobeyed a lawful order on or about 001120. 
	Award: Forfeiture of $100.00 pay per month for 2 months, restriction for 26 days, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

010409:	UA from 0600, 010409.

010418:	Missed Ship’s movement.

010509:	Declared a deserter.

020719:	Applicant discharged Under Other Than Honorable Conditions by reason of separation in lieu of a trial by court-martial per MILPERSMAN 1910-106 & LTR from CO TPU.  [Extracted from DD Form 214].

NO DISCHARGE PACKAGE AVAILABLE

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020719 under other than honorable conditions in lieu of a trial by court-martial (A and B).  In the absence of a discharge package, the Board presumed regularity in the conduct of governmental affairs (C) and, after a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, found that the discharge was proper and equitable (D and E).

Issues 1-3.    The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

The Applicant requested discharge for the good of the service to escape trial by court-martial.  In the request the Applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he was guilty of the offenses.  He further certified a complete understanding of the negative consequences of his actions and that characterization of service could be under other than honorable conditions.  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 remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide additional documentation to support any claims of post-service accomplishments or any other evidence relating to his discharge at that time.  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] 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