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

 
ex-SA, USNR
Docket No. ND03-01218

Applicant’s Request

The application for discharge review was received on 20030710.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  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 20040514.  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.  “To Whom It May Concern:

This letter is to request a review by the board consisting of changes or updating and corrections of my discharge, with this letter is a copy of my DD214 which needs to be corrected.

First name is G_ not G_: Box # 1
High School Graduate or equivalent the answer is Yes because a copy of my certificate and an official copy of college transcript were providing to the enlistment office (Fort Hamilton in Staten Island, New York.)

I joined the Navy on my own free will on February 3, 1994; I was excited and proud to be  part of the United Stales Armed Forces even though I was pushed back from Chief S_ company, transferred to another company I still had my head up and proud, after a couple weeks I was with Petty Officer BT2 G_ L_ as Company Commander.  I was doing so great that I was number three in command known as the A-Rock.  I did well all the way thru boot camp but to bad I was not a U.S. Citizen that was my denial for promotion.  Then came apprentice training with First class Petty Officer H_ which also put a few requests for me to leave the naval training center with a promotion.  I got turned down again due to the fact that I was not a US Citizen.  Even with my college credit I couldn’t get A-school or a good job.  My first assignment was on board of The USS Detroit which I was still proud to be on; until one weekend I came to Florida to see my wife and there was delayed on my flight going back to the base (Earle, New Jersey).  When I got to the base my ship was already at large, no place to stay I had no choice but flew back to Florida; before I did, I left a message at the phone number that I was instructed to call if I needed to.  No one ever made the attempt to contact me and I couldn’t get in touch with anyone in the mid-time I was getting low on cash I got me a job working as a supervisor for Nation Wide Security (M_ S_, President).  I was covering an afternoon shift (4 to midnight) when the Fort Lauderdale Police Department squad car pulled up and apprehended me.  It turned to be that the Captain of the ship did not want me back and I have this bad record with me every where I go or every job I am trying to get.

Why was I capable of joining the Navy but not getting promoted?
Why didn’t they call me once the ship was ashore?  They had my home address and my phone number.  Time in service exceed 180 days.
I make this affidavit on my free will and I understand the meaning of supplying any additional information.
Please review my discharge and update it for the better, thank you in advance.
G_ J_”

Documentation

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

Applicant’s DD Form 214 (2)
High School Equivalency Diploma Transcript
High School Equivalency Diploma
Applicant’s Social Security Card
Applicant’s drivers license for the State of New Jersey
Applicant’s unofficial college transcript
Letter from Applicant, dated October 9, 2003
Letter from Miami-Dade Police Department, dated September 19, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   None	

Period of Service Under Review:

Date of Enlistment:  940120		Date of Discharge:  951026

Length of Service (years, months, days):

	Active:    01  08  24	Does not exclude lost time
	Inactive:  00  00  13

Age at Entry:  26			Years Contracted:  8

Education Level:  8 GED		AFQT:  31

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*	Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  419

*No marks assigned.

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:

940203:	Applicant ordered to active duty for 36 months.

940719:	Applicant to unauthorized absence 0720, 940718 to 0715, 940719 (22 hours/surrendered).

940811:	Applicant missed ship’s movement.

940908:	Applicant missed ship’s movement.

941004:	Applicant declared a deserter.

941004:	Applicant to confinement 2315, 941004.

951013:	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 (2 specs): Unauthorized absence from 0720, 940801 to 0730, 940829 (28 days/surrendered) and unauthorized absence from 1630, 940904 to 2045, 961003 (392 days/apprehended).  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.  

951026:	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 19951026 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 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 Board did note the administrative errors on the Applicant’s DD Form 214 and advised the Commander, Naval Personnel Command, Millington, TN, to make the necessary corrections.  

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), 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 [e.g., 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	

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