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

FOR OFFICIAL USE ONLY

 ex-AN, USN
Docket No. ND05-00467

Applicant’s Request

The application for discharge review was received on 20050125.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Region.  The Applicant did not designate a representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050908.  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 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 or attached document/letter:

“Dear Review Council:

On or about 11 March 2004 I, J_ T_ M_ (Applicant) (social security number deleted), received an OTHER THAN HONORABLE DISCHARGE from the United States Navy.  My discharge was based on the following circumstance:

My prior military service record was unblemished.  I was an excellent Sailor both on and off duty.  I received above average performance evaluations for my character and work ethics.  I was always a team player and everyone thought highly of me.  Prior to military service, I had no encounters with my community law enforcement.  I was considered as asset to my community.  During my school years, I was never a problem for the teaching staff or my advisors.  I participated in sports and civic activities.  I joined military service right out of high school and I would treasure to chance to serve again once this mailer is resolved.

The following fact and information is provided to support my discharge upgrade request.  I was arrested in Newport News, VA, 12/03/03, for two outstanding warrants against me for which I was unaware of.  I was apprehended and taken to Newport News City Jail.  I was not granted bond due to the severity of the charges.  On 12/04/03, I was transferred to Norfolk City Jail.  Upon my arrival, I was immediately taken to booking arid receiving for fingerprints and photographs.  While in booking and receiving, the Deputy in Charge asked if I was in the military.  If so, where was I stationed and what command I was assigned to.  I provided the Deputy with the information he wanted.  The Deputy stated that he would contact my ship/Command to inform them of my location and situation so someone could come and take me back into military custody.  The Deputy stated this would keep me from being considered (U.A.).  The Deputy in charge also stated that someone from the military should be there shortly to take me back into their custody.  The Deputy afforded me a phone call and I made every attempt to contact my ship/Command with no success.  Someone at my duty station answered the phone but when the clerk found out it was a collect call, he hung up.  I was incrassated for about a month and I was not informed of anyone from the Military tying to contact me.

During January 2004, I telephoned my parents, which resides in Wise County, VA.  My parents informed me that they had spoken with a family friend, LTC M_ C_, United States Army.  LTC C_ stated that he had contacted Master Chief B_ from my command, the U.S.S.  George Washington CVN- 73.  LTC C_ informed MC B_ of my location and situation.  Master Chief B_ informed LTC C_ that no one from the Norfolk City Jail had been in contact with him.  Had it not been for LTC C_’s contact, he still wouldn’t have known where I was.  My Command Master Chief informed LTC C_ that someone from my Department or Division would be there on my next court date to take me back into military custody.  Upon my return to court, I was granted bond but to my surprise, no one from my Command was present at the hearing as promised.

After a few days passed, my bond was granted and I waited to be returned to military custody.  I was picked up later that day by the HAMPTON ROADS AREA SHORE PATROL.  After being picked up by Shore Patrol and I was taken to Transient Personnel Unit located at Norfolk Naval Station, Norfolk, VA.  I was eventually taken from T.P.U.  to the Norfolk Naval Station holding facility.

While at the Naval holding facility, I was provided an attorney, LT R_ M_.  He presented me a copy of an Email that was sent from Mater Chief B.  L.  S_, T.P.U., my legal chief aboard ship, LNC R_ M. F_ and my divisional chief, ABHC B_ K_.  The Email stated that I was being discharged for civilian convictions.  At the time of my civilian matter I had not been convicted of anything.  I was waiting on a court date but had not been convicted of any crime.  I was presented a charge sheet that stated I was being discharged for being U.A.  The discharge mentioned nothing about being discharged due to any type of civilian conviction.  I discussed the matter with my attorney and based on the discussion, it was decided in my bet interest to take an O.T.H. in lieu of trial by court martial.  I accepted the discharge and was released from the holding facility and sent to T.P.U. on 02/27/04.  I was released to Norfolk Police and later that evening for another warrant I had against me for the same civilian matter.  I was taken back to Norfolk City Jail and my bond was re-instated two weeks later so I could return home, Wise, VA.

I returned to Norfolk, VA 06/14/04 to stand trial on the charges served against me.  After the trial concluded, I was found not guilty on all charges.  The judge in my trial found me not guilty because the Judge caught the victim and her mother in some lies during their testimony.  After I returned home from court the next day, I spoke with some friends who are currently on active duty and retired military.  Everyone agreed that the military could and should have gotten me release from jail from the start.

While incarcerated at the Norfolk Naval Station, my parents communicated with numerous Naval Chiefs and Officers from my Command.  They were contacting my parents to see where I was.  During this time, my ship had already left for deployment.  My new divisional Chief, Chief C_, informed my parents that someone from my command could and should have gotten me out of jail at the time they received confirmation on my location.  Other senior officials from the same military department contacted my parents confirming the previous statements.

Enclosed with this letter is the actual charge sheet I received while in the Naval Brig, a copy of the e-mail that was mentioned (from T.P.U. to my command), a copy of my DD-214 discharge paper, and also a copy of Virginia Courts Case Information (Norfolk Virginia Circuit Court Criminal Division), which includes my charges and my final disposition. (see attached.)

During the time that all of this occurred the United States Navy was in the process of downsizing.  My parents received some information via internet and e-mail from navy news-stand stating that the Navy was processing Sailors out of the military that graduated from the Naval Academy if the were unable to pass Flight school.  The also received more information stating that at one time the Navy did not have enough people but now there are too many and there were talks of downsizing enlisted personnel as well as doing away with some of the ships.
I also feel as if the Navy had already convicted me of my charges before I was tried in a court of law and used, as an example of the downsizing process, which I feel, is unfair.

I, J_ T_ M_ (Applicant) would like to Respectfully Request for my OTHER THAN HONORABLE discharge and my re-code of (4) be upgraded to an Honorable discharge.  I ask of this request in order to return back to active duty military status with a different branch of the United States Armed Forces.  I realize that I put my self in such a situation that the alleged victim(s) from my civilian charges could have made TRUE allegations against me and also putting myself in a situation to cause myself to get discharged from the military.  I regret everything that happened and I have realized that I have not only let the United States of America down but I have also let my family, friends, and other fellow soldiers and sailors down also.  It has always been a dream of mine and both of my late grandfather(s) for myself to join the United States Military and I feel like I have let them both down as well.  It would mean a great deal to me if this request was granted and I could re-enlist back into active duty military status.  I can honestly say that I have learned highly from my unfortunate mistakes and would like for one more chance to prove to EVERYONE what kind of person I really am.

Any Questions regarding this situation, please feel free to contact me at the following:  (telephone numbers deleted)

Thank you for all your cooperation.
[signed]”

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214
E-mail dated January 26, 2004
Virginia Courts Case Information, Norfolk Circuit - Criminal Division, dated January 21, 2004
Virginia Courts Case Information, Norfolk Circuit - Criminal Division, dated February 4, 2004
Charge Sheet, dated February 2, 2004
Letter from SSG M_ B. B_, USA, U. S. Army Recruiting Station Commander, undated
Character Reference letter from LTC M_ A. C_, USA, dated September 27, 2004
Job reference from Wise County Maintenance Department, undated
Memorandum from SFC P_ J_, USA, USAREC Recruiter, dated December 17, 2004
Letter from C_ W. C_, Principal, J. J. Kelly High School, dated January 11, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20001031 - 20010807		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010808		Date of Discharge:  20040323

Length of Service (years, months, days):

	Active:    02  07  15  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  120 days
	Confinement:		  None

Age at Entry:  18

Years Contracted:  4

Education Level:  12			AFQT:  39

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.50 (2)		Behavior:  3.00 (2)	OTA:  3.17

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

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 1910-106 (formerly 3630650).

Chronological Listing of Significant Service Events: 

031010:	Applicant to unauthorized absence, 0630 031010.

031203:	Applicant arrested this date in Norfolk and charged with indecent liberties with a minor and contributing to the delinquency of a minor on 030103 in Norfolk Circuit Court, Criminal Division.

040123:	Applicant from unauthorized absence, 1515 040123 (105 days/Apprehended).

040123:	Applicant placed in pretrial confinement, 1731 040123.

040126:	Commanding Officer, Transient Personnel Unit, determined that probable cause existed that the Applicant violated UCMJ Article 86, unauthorized absence from 031010-040123, and that confinement is necessary because it was foreseeable that the Applicant would not be available for disciplinary proceedings if released, a less severe form of restraint is inadequate, and he will commit further serious misconduct.  CO’s comments (verbatim):  “AN M_’s (Applicant) 105 day unauthorized absence (UA) was terminated when he was apprehended by Hampton Roads Area Shore Patrol, Norfolk, Virginia for military desertion on 23 January 2004.  AN M_ was convicted of a misdemeanor in Juvenile and Domestic Relations District Court, Norfolk, Virginia for contributing to the delinquency of a minor, given six (6) months confinement with five (5) months suspended and timed served.  He was in civilian confinement from 3 December 2003 until he returned to military control 23 January 2004.  Additionally, he was charged with sexual assault of a minor child and is awaiting a court appearance in Juvenile and Domestic Relation District Court, Norfolk, Virginia.

040202:	Charges preferred for violation of the UCMJ Article 86:  Unauthorized absence from 031010 to 040123 (105 days/Apprehended).

040203:	Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  He consulted with counsel and was fully advised of the implications of his request.  The Applicant stated he understood the elements of the offense with which he was charged, and admitted there was enough evidence to convict him of the charges preferred against him, specifically, UCMJ Article 86:  Unauthorized absence in excess of 30 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.

040227:	Commanding Officer, Transient Personnel Unit, Norfolk approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge under other than honorable conditions.

040227:	Applicant arrested this date in Norfolk and charged with indecent liberties with a minor and contributing to the delinquency of a minor on 030103 in Norfolk Circuit Court, Criminal Division. [Extracted from supporting documents provided by Applicant.]

040323:	DD Form 214: Applicant discharged under other than honorable conditions in lieu of trial by court-martial, authority: MILPERSMAN, Article 1910-106.

040614:	Norfolk Circuit Court – Criminal Division:  Applicant found not guilty of two counts of indecent liberties with a child.  [Extracted from supporting documents provided by Applicant.]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged, in absentia, on 20040323 in lieu of a trial by court-martial (A) with a service characterization of under other than honorable conditions.  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 (B and C).

In a signed statement, the Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  He consulted with counsel and was 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 there was enough evidence to convict him of violating UCMJ Article 86:  Unauthorized absence from 20031010 to 20040123.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  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.

The Applicant contends that his discharge should be upgraded because his unauthorized absence was the result of being in the control of civilian authorities and that he was ultimately acquitted of the civilian charges for which he was being held.  The Board found the Applicant’s contentions without merit.  The evidence of record shows that the Applicant’s unauthorized absence commenced on 20031010.  The evidence further reveals that the Applicant was not arrested on civilian charges until 20031203, 54 days after the Applicant’s unauthorized absence already began.  There is no explanation in the record, nor has the Applicant provided any justification as to why this period of unauthorized absence should be excused.  Furthermore, the evidence indicates that although the Applicant was acquitted of two counts of indecent liberties with a child, he was convicted of one count of contributing to the delinquency of a minor.  At least a portion of the time the Applicant spent in the hands of a civilian authorities was as punishment for his civilian conviction.  Based on the above evidence, the NDRB unanimously concluded that the Applicant has no justification for any amount of the period of his unauthorized absence and his under other than honorable conditions discharge was, therefore, both proper and equitable.  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.

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

C.  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