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

 ex-SR, USN
Docket No. ND04-01021

Applicant’s Request

The application for discharge review was received on 20040607.  The Applicant requests the characterization of service received at the time of discharge be changed to uncharacterized.  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 20041112.  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.  Navy breached contract by guaranteeing me SEALS challenge program after training for my job.

2.  I tried numerous times to talk to legal on base and was declined.

3.  I turned myself in.

4.  Very dedicated to my country and military.

5.  I want to make a career in the Marine Corp.

6.  I was in Boot camp only 5 weeks.

I, S_ S_, entered the United States Navy in September 1999.  My contract was breached by the Navy.  My fifth week in bootcamp I realized what had happened.  I tried to go to the legal office on base and was declined by my Petty Officers numerous times.  Afraid of graduating in only a few weeks and becoming a part of the navy, I took matters into my own hands and went AWOL.  I returned home with a great job and finally turned my self in over two years later.

I deeply regret the mistake I made when I was only seventeen years old.  Only a child then, it is the only crime I have ever done.  I am requesting an entry level separation only because I need to go to the Marine Corp.  There are many soldiers dying each day, and my country needs more people like me to risk their own lives.  I am very dedicated to fight for my country and I am asking for a way to get in.  Please take this into consideration, and let me prove to my country that I can truly help.  Thank you.”

Documentation

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

Copy of DD Form 214
Letter from Captain H_, USN

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	990323 - 990906	COG

Period of Service Under Review:

Date of Enlistment:  990907		Date of Discharge:  021108

Length of Service (years, months, days):

	Active:    00  03  06  (Does not include lost time)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  31

Highest Rate:  SR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  None		Behavior:  None		OTA:  None

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  1059

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:

021021:	Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ), Article 86: Unauthorized absence (UA) from 991126 to 021021.

021021:	Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  The Applicant waived his right to consult with counsel.  The Applicant stated he understood the elements of the offense with which he was charged, and admitted he was guilty of the charge preferred against him.  Specifically, he admitted to violating UCMJ, Article 86.  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.  

021025:	The Commanding Officer, TPU, 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 20021108 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 1-4, 6.  On 20021021, the Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  The Applicant waived his right to consult with counsel.  The Applicant stated he understood the elements of the offense with which he was charged, and admitted he was guilty of violating the UCMJ, Article 86, by being in an unauthorized absence status for 1059 days.  While he may feel that his actions were justified because he felt the Navy did not honor his enlistment contract and unfairly denied him the opportunity to consult with legal representatives, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  The Applicant’s length of service and fact that the Applicant turned himself in from his absence does not mitigate his misconduct.  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.

Issue 5.  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’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question.  No such inequity or impropriety is evident during the Applicant’s enlistment.  Additionally, 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.  Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge.  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