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

 
ex-FR, USN
Docket No. ND03-01246

Applicant’s Request

The application for discharge review was received on 20030721.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  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 1910-106 (formerly 3630650).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  I joined the U.S. Navy when I was 17.  My dream was to be a sailor in the navy.  I was a good recruit when I went through RTC worked hard and studied hard.  Report to my first command USS FRANK CABLE in Sep 2001 and at that time I understand that our country was at war with Afghanistan.  Sir, this scared me and therefore I made a bad decision because I was young and scared.  I decided to flee to china.  While in china my father spoke with me everyday about doing the honorable thing and return to the navy.  My mother who was living in the US flew to china to encourage me to do the samething.  Still I was scared.  Ten months later I finally came to the decision to return to the U.S and turn myself into the military authority.  Aug 2, 2002 I reported to Naval Subase Bangor, WA where I was put on restriction for 3 wks.  I spoke to the C-O about staying in the navy and C.O told me I will have to speak with a lawyer.  During the 3RD wk of restriction, I spoke with a legal officer and he informed me that if I wanted to stay in the navy I will go up for court-martial and spend time in the brig and then have an admin board to decide if I can stay in the navy without any guarantees.  I asked him what the max punishment was that I can receive and he said 3 years.  I was scared again and didn’t know what to do; I came back to face up to my charges and to serve the country, make up my mistake, but I could still get kicked out of the navy.  I decided to sign the discharge papers without fully understanding what an RE-4 code meant to me.  After I was processed out of the navy.  I finally understood the RE-4 and was regretted my decision.  I explained to my mom how much I wanted to get back into the navy and she wrote to our state senator looking for guidance and assistance.  We received a letter from the Dept of the Navy Stating that I have a chance to waive my discharge code.  Upon reading that I felt I have just 1 more chance to make wrong-right.  That is the intention of this letter.  I am older more mature and realize how many bad decisions I have made thus far I would like an opportunity to prove that I can be a good sailor in the U.S. Navy.  I now understand that I need to be responsible for my actions.  I will gladly serve the time afforded me if I am allowed another chance.  I wand to prove that I can be a good sailor and I want more than anything to serve my country the United States.  The feeling I had while wearing the uniform is unmentionable and filled me with pride.  It been almost a year now since I was discharge last September.  During this 1 year.  I have completed an Associates degree in Business management and certification of nursing assistant in the nursing field.  If I could allowed to get back to the Navy.  I want to use my knowledge and skills to support my country.  Sir(s) I am asking for one more chance to serve my country.”

Documentation

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

Copy of DD Form 214
Copy of Criminal Record Check
Copy of Schooling Notarize Certificate
Copy of Business Administration Degree
Copy of Nursing Assistant Registration
Copy of Certificate of Completion (Nursing Assistant Training Program)
Copy of College Transcript 
Letter from the Honorable M___ C___ dated January 15, 2003 (2 pages) 

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	010323 - 010327	COG

Period of Service Under Review:

Date of Enlistment:  010328		Date of Discharge:  021001

Length of Service (years, months, days):

	Active:    00  07  06
	Inactive:  None

Age at Entry:  17			Years Contracted:  4 

Education Level:  12			AFQT:  39

Highest Rate:  FR

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:  333

*No Marks available for review 

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:

020818:	Record of Counseling: Responsibilities (SNM was UA from the 1600 muster on 020818.  He did not return for duty until 1650). 

020820:	Charges Sheet: Violation of the Uniform Code of Military Justice (UCMJ) Article 86: (2 Specifications), Specification 1: Did, on or about 011004, without authority, absent himself from his unit, to wit: USS FRANK CABLE (AS-40), located at Naval Station Guam, Marianas Island, and did remain so absent until on or about 010731 (300days/S); Specification 2: Did, on or about 010822, without authority, absent himself from his unit, to wit: USS FRANK CABLE (AS-40), located at Naval Station Guam, Marianas Island, and did remain so absent until on or about 010923 (33days/S).

020820:	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 011004 to 020731 and 010821 to 010923.  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.  

020820:	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.

020910:	Record of Counseling: Personal Behavior and Responsibilities (On 020910 member was found in a restricted rack sleeping at 0615.  Member was verbally counseled on being in assigned rack). 

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021001 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:  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the Applicant’s enlistment.  While he may feel that his fear of war was a contributing factor, that does not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service.  His service record is marred by two separate periods of unauthorized absences thus substantiating the misconduct.  The Applicant was provided the appropriate due process and was properly separated in accordance with regulations.  Relief denied.

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 the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, a positive employment record, documentation of community service, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  

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 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