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

 
 ex-SA, USN
Docket No. ND03-01065

Applicant’s Request

The application for discharge review was received on 20030609.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to hardship.  The Applicant requests a documentary record 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 20040423.  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 and reason for 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.  “In 2001, Commander H_ received a letter from Dr. D_ B_.  A letter supporting a hardship discharge.  All of my mother’s medical conditions were noted.  No actions were taken.  I am submitting this application along with B_ C_’s (mother) medical documentation.  In consideration of a discharge upgrade.”

Applicant marked the box "I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION."  Issues are listed below.

2.  “I have enclosed my military discharge documentation.  This includes documentation regarding administrative discharge in lieu of trial by court-martial.  A letter from my employer is included in accordance with the correspondence number the board has sent (nd03-01065).  In the past I have provided medical documentation pertaining to my mother’s condition (Ms. B_ C_).

     Prior to my discharge, my mother was experiencing medical and financial problems.  After my discharge I was able to assist my mother with her disability and with her financial issues.
     Currently, I’m matriculated in the City University of New York.  Upon completing my course of study I wish to avoid substantial prejudice in civilian life in relation to my service in the armed forces and/or the character of discharge I have received.

     An upgrade on the classification reentry code and an upgrade in discharge is what I request the review board to take into consideration.

RESPECTFULLY,

J_ A., C_

Documentation

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

Medical documentation on Applicant’s mother, dated April 8, 2003 (4 pages)
Letter from Applicant, dated February 3, 2004
Applicant’s DD Form 214 (Member 1 and 4)
Seven pages from Applicant’s service record
Job verification, dated January 20, 2004
Job verification, dated January 23, 2004

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	990726 - 990802	COG

Period of Service Under Review:

Date of Enlistment:  990803		Date of Discharge:  021213

Length of Service (years, months, days):

	Active:    03  04  11	Does not exclude time lost
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  39

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)	Behavior:  2.00 (1)		OTA:  2.67

Military Decorations:  None

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

Days of Unauthorized Absence:  358

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:

001008:	Applicant to unauthorized absence 0500, 001008.

001029:	Applicant from unauthorized absence 2249, 001029 (21 days/surrendered).

001117:	NJP for violation of UCMJ, Article 86: Absence without leave.
	Award: Forfeiture of $537.90 per month for 2 months, restriction and extra duty for 45 days, reduction to SR.  Forfeiture and reduction suspended for 6 months.  No indication of appeal in the record.

010618:	Applicant to unauthorized absence 0700, 010618.

010711:	Applicant missed ship’s movement.

010909:	Applicant from unauthorized absence 1935, 010909 (81 days/surrendered).

010919:	NJP.  No additional information available.  [Extracted from Awards document on microfiche.]

011110:	Applicant to unauthorized absence 0700, 011110.

020114:	Applicant from unauthorized absence 2200, 020114 (64 days/surrendered).

020123:	NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 87: Missing movement.
	Award: Forfeiture of $582 per month for 2 months, restriction and extra duty for 45 days, reduction to SR.  No indication of appeal in the record.

021202:	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: Unauthorized absence from 020328 to 021010 (192 days).  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.  [Extracted from supporting documents submitted by the Applicant.]

021206:	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.  [Extracted from supporting documents submitted by the Applicant.]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021213 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 and 2:  A characterization of service of under other than honorable conditions is warranted when the member’s conduct constitutes a significant departure from that expected of a Sailor.  The Applicant’s service was marred by award of non-judicial punishment (NJP) on three occasions, adverse counseling entries, and performance and conduct markings well below the minimum acceptable levels.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  An upgrade to honorable would be inappropriate.  It must be noted that most Sailors serve honorably and well and therefore earn honorable discharges.  In fairness to those Sailors, commanders and separation authorities are tasked to ensure that undeserving Sailor receive no higher characterization than is due.  Relief denied.

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.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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 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), re-issued October 2002, effective 22 Aug 2002 until Present, 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