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

 
 ex-MMFA, USN
Docket No. ND05-00432

Applicant’s Request

The application for discharge review was received on 20050112.  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 review was conducted in Washington, D.C. on 20050428.  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.  “The reason why I am requesting a discharge upgrade is while I was serving in the U.S. Navy I felt the discipline was too lazed and my command condoned such behavior I believed that getting an early discharge and continuing my life as a civilian was the route that I wanted to go after careful consideration I realize my judgment was impaired due to my own prejudges I am respectfully requesting an upgrade on my discharge so that I may career in the military.”

Documentation

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

None was submitted

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	020228 - 020423	COG

Period of Service Under Review:

Date of Enlistment:  020424		Date of Discharge:  031126

Length of Service (years, months, days):

	Active:    01  07  03	Does not exclude lost time
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  10			AFQT:  53

Highest Rate:  MMFN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (1)		Behavior:  2.00 (1)		OTA:  2.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  122

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:

021202:	Applicant to unauthorized absence 0700, 021202.

021202:	Applicant missed ship’s movement 1100, 021202.

021216:	Applicant from unauthorized absence 0250, 021216 (14 days).

030219:	NJP for violation of UCMJ, Article 86: Absent from unit, violation of UCMJ, Article 87: Missing movement, violation of UCMJ, Article 121: Wrongful appropriation, violation of UCMJ, Article 107: False official statement.
	Award: Forfeiture of $670 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

030717:	Applicant to unauthorized absence 0500, 030717.

030902:	Applicant from unauthorized absence 2153, 030902 (47 days/apprehended).

030905:	Applicant to unauthorized absence 2359, 030905.

031118:	Applicant apprehended by civilian authorities at 0155, 031105 for unauthorized absence and returned to military control 1130, 031118 (61 days/apprehended).

031120:	Court-Martial charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86 (2 specs): (1) Unauthorized absence from 0500, 030717 to 2153, 030902, (2) Unauthorized absence from 2359, 030905 to 1130, 031118.

031120:	Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  He waived is 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 (2 specs): (1) Unauthorized absence from 0500, 030717 to 2153, 030902, (2) Unauthorized absence from 2359, 030905 to 1130, 031118.  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.

031121:	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 20031126 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.  In a signed statement, the Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  He affirmatively waived his right to consult with counsel and be fully advised of the implications of his request.  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.  The Applicant stated he understood the elements of the offenses with which he was charged.  He admitted he was guilty of violating Article 86:  unauthorized absence from 030717 to 030902 and from 0309050 to 031118.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief is not warranted.

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.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

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

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