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

 
ex-SN, USN
Docket No. ND03-00870

Applicant’s Request

The application for discharge review was received on 20030424.  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 20040401.  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.  “Chief L_ was the leading chief petty officer at Donnelly Hall-Naval Station San Diego- Combined Bachelor Housing.  His social security number is not in my possesion at the present time.  Chief L_ was present to signed the leave chit I’d submitted to request an extended leave with my maternity leave.  After submitting the leave chitt, I left San Diego in faith that I did not break any rules nor regulations.

The Red Cross messages I’ve attached arc there to show proff of my where-abouts and to show what issues I was facing at home during this time.  My infant daughter had medical trouble which needed treatment.  I had to be there with her at the time and was advised by a physician that traveling with my child in such a medicall condition would not be wise.

I am a single mother, who is striving to do what is best for my child and me.  I can not afford to drop out of school because I need a higher education to get a better job to support myself and my child. I am more than willing to take the neccessary steps in order to join the Army Reserves, but with on other than honorable discharge my paper work is over looked.

As submitted subsequent to the original application:

“Chief L_ was the leading Chief Petty Officer at Naval Station San Diego-Donnelly Hall- Combined Bachelor Housing. He witnessed and signed the “leave- chit” I submitted, requesting an extension of 21 days along with my maternity leave. Being that I was in a critical condition that involved my military career and my actions to make the necessary arrangements for custody of my child to be turned to a love one; I left the “leave- chit” on the desk of a member of my chain-of command. I also left San Diego in good faith that I was not breaking any rules.
After arriving to Columbia, S. C., I ran into a series of complications that my command was aware of. I made phone calls and I sent a Red Cross message. I took these measures because I was informed that the request of extended leave wasn’t received and I was in a deserter- status. I was also informed that both my child and I needed to be at Naval Station San Diego by midnight. This mission was impossible because 1 didn’t have funds to make the trip, my child was hospitalized and I didn’t have a home to bring a child to in San Diego. A few days passed and I was capable of returning to San Diego freely without the concern of my child’s well being.
Upon my arrival to San Diego, I was faced with disciplinary actions for an unauthorized absence and a possible deserter status. As I tried to explain the reasons for the leave I took, the superiors of my command was unable to find documentations to back up my argument. The only member of my chain of command who knew anything about the leave chit I’d submitted was chief L_ and he was no longer a member of Naval Station. A disciplinary review board was arranged (D.R.B.).
I had no proof of approval for my extended leave and I felt the worst was about to happened. I ask a few people about how I should go about protecting myself from restriction and got advice on refusing a captain mast. I requested a court martial with faith that I would be proven innocent for what I thought was just a technicality. While these events were taking place, my aunt was sick and needed medical treatment. This involved me because my aunt had custody of my three-month-old child.
My aunt notified me over the phone and a requested a Red Cross message so I could make the necessary arrangements to get my child. My command was also notified. Jag officers of Naval Station San Diego understood the crisis and then made arrangements for me to be discharged immediately. I never intended to be discharged, but due to the circumstances this act was very necessary.
After being discharged with an “other than honorable,” it left me deprived of benefits. I am in a financial bind being a single mother and any type of help I receive does justice. I’ve served in the military under good faith and a strong will to strive to do what is best. Along that strive, I did run into many bumps that could have been avoided if I would have been wiser in my decision-making; I served with honorable intentions.”

Documentation

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

Applicant’s DD Form 214
Letter from American Red Cross, dated April 8, 2003 (2)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	980731 - 990608	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  990607		Date of Discharge:  020712

Length of Service (years, months, days):

	Active:    03  01  05
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  42

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.67 (3)	Behavior:  2.33 (3)		OTA:  2.50

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, HSM, NDSM

Days of Unauthorized Absence:  40

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:

000127:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
	Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 15 days, reduction to SA.  No indication of appeal in the record.

000520:	Retention Warning: Advised of deficiency (Insubordinate conduct toward a Petty Officer, specifically:  1.  Insubordinate conduct toward a Petty Officer.  ON 000505, you received an order from Boatswain’s Mate Second Class C_, a senior Petty Officer, to go with him to your assigned space to check for cleanliness.  You knew at the time you were given this direct order that Petty 0fficer C_ was senior to you.  You knew it was your duty to obey this direct order, but you willfully disobeyed it.  If you are given a LAWFUL order by a superior, no matter what that order might be, you MUST obey it.  You do not have a choice in the matter.  You can not CHOOSE when you want to follow an order and when you do not want to.  It is not your position in this Navy to decide what orders are worth your time and attention and which are not.  That is for your superiors to decide and you will acknowledge their right to give you orders by FOLLOWING THEM.
2.  Disrespect to a Petty 0fficer.  On 000505, you willingly disrespected a Petty Officer in the presence of your peers.  Furthermore, the seriousness of your offense was elevated when your actions were witnessed by members of another branch of service.  You blatantly disregarded Petty Officer C_ by turning back to continue your conversation after telling him you would go to your assigned space.  You had to emphasize to those around you that Petty Officer C_ was not worth your time by saying to the Marines. ‘‘So, anyway, like I saying…”  Your disrespect is insubordinate conduct and will not be tolerated.
3.  The proper course of action was to acknowledge Petty Officer C_’s order and to carry it out fully.  If you had any questions as to the validity of this order, you should have talked to Petty Officer C_ in private.  If you could not resolve the conflict by talking to him, it your duty to inform your chain of command immediately for a resolution.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

000525:	NJP for violation of UCMJ, Article 92.
	Award: Forfeiture of $502 per month for 1 month, restriction and extra duty for 45 days, reduction to SR.  No indication of appeal in the record.

020418:	Applicant to unauthorized absence 0715, 020418.

020529:	Applicant from unauthorized absence 0715, 020528 (40 days/surrendered).

020628:	Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86 (2 spec): (1) Unauthorized absence from 0715, 020418 to 0715, 020528 (40 days/surrendered), (2) Absent from unit 0730-1230, 020605.

020710:	Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  She consulted with counsel and was fully advised of the implications of her request.  The Applicant stated she understood the elements of the offense(s) with which she was charged, and admitted she was guilty of all the charges preferred against her.  Specifically, she admitted to violating UCMJ, Article 86 (2 specs): (1) Unauthorized absence from 020418 t 020528, (2) Absent from unit 0730-1230, 020605.  The Applicant stated she was completely satisfied with the counsel she had received. The Applicant understood that if discharged under other than honorable conditions, it might deprive her of virtually all veterans' benefits based upon her current enlistment, and that she 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.  

020712:	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 20020712 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 requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  She consulted with counsel and was fully advised of the implications of her request.  The Applicant stated she understood the elements of the offenses with which she was charged, and admitted she was guilty of all the charges preferred against her.  The Applicant stated she was completely satisfied with the counsel she had received. The Applicant understood that if discharged under other than honorable conditions, it might deprive her of virtually all veterans' benefits based upon her current enlistment, and that she might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received there from may have a bearing.  Relief denied.

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 following is provided for the edification of the applicant.  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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  

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 documentation to support any claims of post-service accomplishments or any other evidence related to her 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 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