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

 ex-SN, USN
Docket No. ND04-00585

Applicant’s Request

The application for discharge review was received on 20040226.  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 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 20041001.  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.  “Letter of Petition

My name is D_ L_ L_ (Applicant) formally SN L_ (Applicant) of the USS Harry S Truman.  I was discharged on 09APR03 with an Other than Honorable discharge by lour of court-martial for desertion.  I don’t know how to make that sound good, maybe because I can’t.  I did not only disgrace my country, but my-self as well.

My mom died when I was l4yrs old and my dad when I was around 9.  So all I had was my sister and my girlfriend.  I was put into foster care, but no one wanted a 14 year old male so I stayed in about 13 foster homes.  I was mistreated and spilt up from my sisters.  I’m not telling you this to make you feel sorry for me, because I turned out just fine, but to show you I didn’t have anyone to tell me that’s not a good ideal or you’ll regret it later on.  I would have done anything for both my sister and girlfriend even if it meant putting my-self in harms way.  When they needed me I was there, I’ve been the man of the house and did whatever it took to make ends meet.  When I wasn’t making enough in the military and my family was on the verge of being put out on the street, I didn’t know what to do.  I used to skip school just to work fulltime days, I wasn’t like most kids my age, and I was the man of the house at l7yrs old.  I felt it was up to me.

I put in for leave and it was accepted.  I left the night before my leave date and therefore didn’t muster the next day.  This action was stupid and I didn’t think clearly.  It was the worst mistake of my life.  I was scared to go back because I was gone so long.  I was afraid that I wouldn’t see my family.  I married my girlfriend, worked full time, and saved enough money so my family could live while I was gone.  I then turned my-self in because I couldn’t live with my-self anymore.  I know I was wrong.  I’m not disputing that, I just want to make it right.

Everything I’ve done thus far is to better my-self and to become an honest person and a productive member in society.  I want to make a difference and be able to look back on my life and be proud.  I am a student at Marquette University, one of the most prestigious schools in the nation; I’m maintaining a B average, I work fulltime at the US Bank call center, a husband, and father of three.  If you decide to overturn my discharge not only do I intend to sign the contract for ROTC, but I intend to join the National Guard.  I have spoken with every recruiter in the state and I really want to do this! It will be a great experience for me and will give my wife and me extra money as well.  We both work fulltime and go to school as well and at times it gets hard, so the guard money will come in handy.

You don’t know me, but I’m not a bad person and I’m truly sorry for what I did.  I hope the letters of these important people will prove to you that I’m not the same person.  I am pleading for you to please consider overturning my discharge.  I have done everything I can to get it overturned, such as writing my senator, going to the VA association, and even contacting a JAG officer.  I have been told that I should wait five years to show that I’m a changed person, but I can’t wait that long.  I could’ve but I can only do two years in the Army ROTC with out signing a contract.  I really want this and will do anything to see my goal through.  I thank you for taking the time to look at my case.

Sincerely Yours

D_ L_ L_ (Applicant)”

Documentation

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

Letter of Recommendation dated April 2, 2004
Reference Letter from Wife
Reference Letter dated March 24, 2004
Employment/Character Reference Letter dated March 18, 2004
Copy of Certificate of Appreciation

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	001215 - 010711	COG

Period of Service Under Review:

Date of Enlistment:  010712		Date of Discharge:  030409

Length of Service (years, months, days):

	Active:    01  07  23
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  81

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*	Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  214

*No Marks made 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:

020209:	UA from USS HARRY S. TRUMAN (CVN-75).

020211:	Surrendered onboard USS HARRY S. TRUMAN (CVN-75) (2 days).

020708:	UA from USS HARRY S. TRUMAN (CVN-75).

020712:	Surrendered onboard USS HARRY S. TRUMAN (CVN-75) (4 days).

020803:	UA from USS HARRY S. TRUMAN (CVN-75).

020805:	Surrendered onboard USS HARRY S. TRUMAN (CVN-75) (2 days).

020807:	UA from USS HARRY S. TRUMAN (CVN-75).

030303:	Surrendered onboard USS HARRY S. TRUMAN (CVN-75) (206 days).

030304:	Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  Applicant waived right to consult with counsel.  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: Did on or about 0600, 020807 without authority, absent himself from his organization, to wit: USS HARRY S. TRUMAN (CVN-75), located at Norfolk, VA, and did remain so absent until on or about 1835, 030303 (206 days).  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.

030310:	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 20030409 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:  On 20030304, the Applicant requested discharge for the good of the service to escape trial by court-martial.  In the request the Applicant noted 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.  While he may feel that his family problems were contributing factors, they do 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.  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.

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 a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   The Board commends the Applicant for his current efforts.  However, 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.  

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