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

  ex-SH3, USN
Docket No. ND04-01037

Applicant’s Request

The application for discharge review was received on 20040615.  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 requested representation by the American Legion.

Decision

A documentary review was conducted in Washington, D.C. on 20050224.  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 would like to obtain federal employment; also I received an OTH discharge because I went U.A. to aid my mother who was very ill.  She was diagnosed with sarcoidosis and her prognosis wasn’t good.  I thought that I could help her recover, but she died 27 Jun 02.  I also would like to re-enlist back into the Navy.”

Additional issues submitted by Applicant’s counsel/representative (American Legion):

1.  “Equity Issue:  Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174D, Part V, Paragraph 503, as it pertains to post-service conduct, in assessing the merits of this application.
_______________________________________________________________________

In accordance with Title 32, CFR, Section 724.166 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to the Applicant’s petition.

The Board’s attention is invited to Blocks 10 and 18 of DD Form 293.  This former member served his first contract honorably then reenlisted on 990812.  Per BUPERSINST 1900.8, Block 18 should include “Continuous Honorable Active Service from 940214 until 990811” and appropriate corrections made to Block 10.

The SR is incomplete.  In particular, the discharge package is missing.  Review of the available records reflect that this former member maintained satisfactory performance and conduct markings with a 3.8 OTA and earned the NDSM, MUC, AFSM, AFEM, FLOC, MMCAM and GCM.  Pending SPCM for VUCMJ, Article 86 (990812-011126), he requested and was granted administrative separation in lieu of trail.  On 011220, he was discharged Under Other Than Honorable Conditions due to separation in lieu of trail by court martial as authorized by NAVMILPERSMAN, Article 1910-106.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because mitigating family problems, his mother’s illness, contributed his misconduct.  He has not submitted any additional documentation for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by Title 10, USC, Section 1553 and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   USNR		940129 - 940213	Rep to ACDU
	Inactive: USN			940214 - 990811	HON

Period of Service Under Review:

Date of Enlistment:  990812		Date of Discharge:  011220

Length of Service (years, months, days):

	Active:    00  00  01  (Does not include lost time)
	Inactive:  None

Age at Entry:  26			Years Contracted:  4

Education Level:  12			AFQT:  53

Highest Rate:  SH3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*			Behavior:  NMF		OTA:  NMF

Military Decorations:  NAM

Unit/Campaign/Service Awards:  NDSM, MUC, AFSM, AFEM, Flag Letter of Commendation, GCM, NER

Days of Unauthorized Absence:  837

*No marks found in service record for the current enlistment

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:

990812:	Applicant re-enlisted in the United States Navy for 4 years this date.

990812:	Applicant commences a period of unauthorized absence this date [extracted from DD Form 214].

011126:	Applicant’s unauthorized absence terminated this date [extracted from DD Form 214, 837 days].

011220:	Applicant discharged under other than honorable conditions in lieu of a trial by court-martial.

Complete discharge package unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20011220 under other than honorable conditions in lieu of a trial by court-martial (A and B).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (E).

Issue 1:  Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  In the absence of a complete discharge package, the Board presumed regularity of governmental affairs.  Therefore, the Board presumed the Applicant requested discharge to escape trial by court-martial, had the elements of the offense for which he was charged fully explained by counsel, that he was guilty of the offense and that he had a complete understanding of the negative consequences of his actions.  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 Applicant contends his disciplinary problems were the result of stress caused by his mother’s illness.  The NDRB recognizes that serving in the U.S. Navy is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that many sailors experience hardships similar to those of the Applicant.  It must further be noted that, of these sailors, the vast majority of them are still able to serve honorably despite extreme hardships and therefore earn their honorable or general (under honorable conditions) discharges.  In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  The NDRB found that the Applicant's service was equitably characterized.  Relief denied.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  Reenlistment policy of the Naval service is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a 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.  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 29, effective 
11 Jul 2000 until 21 Aug 2002, 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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023