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

FOR OFFICIAL USE ONLY

  ex-FR, USNR
Docket No. ND05-00435

Applicant’s Request

The application for discharge review was received on 20050105.  The Applicant requests his characterization of service received at the time of discharge changed to general (under honorable conditions).  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050831.  After a thorough review of all available 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 and reason for discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions in lieu of a trial by court-martial.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I was young and immature when I enlisted in the Navy and had only 1 incident on my record (discharge).  I returned from the unauthorized leave before 30 days.  I have since matured, gained a A.S. degree in computer science, on the Dean’s list for several semesters and I have a work history.  I was informed by a Coast guard recruiter to petition the Discharge Review Board for a view of my status for a change in my re-entry number to RE-3.  I will need this change in order to have an eligibility status for that Branch of service.  My intent is to enlist in the Coast guard.”

Documentation

The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19950913 - 19951105
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19951106		Date of Discharge:  19960814

Length of Service (years, months, days):

	Active:    00 09 08 (Does not exclude lost time.)

Time Lost During This Period (days):

	Unauthorized absence:  54 days
	Confinement:		  Unable to determine

Age at Entry:  18

Years Contracted:  4

Education Level:  12				AFQT:  53

Highest Rate:  FR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*				Behavior:  NA*		OTA:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal

* Not Available

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority:  MILPERSMAN, Article 3630650.

Chronological Listing of Significant Service Events: 

960403:	Applicant to unauthorized absence at 0700 on 960403.

960412:	Applicant from unauthorized absence at 0435 on 960412 (8 days/surrendered).

960503:	Applicant to unauthorized absence at 0700 on 960503.

960603:	Report of Declaration of Deserter.  Applicant declared a deserter on 960603 having been an unauthorized absentee since 0700, 960503 from Service Schools Command, Great Lakes IL.

960627:	Applicant from unauthorized absence at 1600 on 960627 (54 days/surrendered).

960814:	DD Form 214:  Applicant discharged under other than honorable conditions in lieu of a trial by court-martial, authority: MILPERSMAN, Article 3630650.

Service Record did not contain the Administrative Discharge package. 

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960814 in lieu of a trial by court-martial (A and B) with a service characterization of under other than honorable conditions.  After a thorough review of all 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 Board presumed regularity in the conduct of governmental affairs (E).

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  After a thorough review of Applicant’s case the Board discovered no impropriety or inequity.  When the service of a member of the U.S. Navy has met the standard of acceptable conduct and performance, it is appropriate to characterize that service as honorable.  A under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct or performance outweigh the positive aspects of the member's military record.  Certain serious offenses warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s service was marred by his violation of UCMJ Article 86 (unauthorized absence) on two occasions.  The first for eight days and the later 54 days also violated Article 85 (desertion).  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.  Therefore, the Board found his under other than honorable conditions characterization appropriate.  Relief is not warranted.

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 he only had one incident while in the Navy and it can be attributed to his youth and immaturity.  While he may feel that his immaturity was the underlying cause of his misconduct, the record clearly reflects his willful misconduct totally 62 days of unauthorized absence.  A violation of UCMJ Article 86 (unauthorized absence) in excess of 30 days is a serious offense and if convicted by a special court martial is punishable by a bad conduct discharge and up to 1 year in confinement.  The Applicant demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  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.  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.

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 Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  The Applicant states he has earned an “A. S. degree” and was on the Dean’s list for several semesters, additionally he has a good work history.  The Board deemed the Applicant’s unsubstantiated post-service achievements insufficient to mitigate his misconduct while in the Naval service.  Relief denied.

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), Change 9, effective 
22 Jul 94 until 2 Oct 96, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR 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