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

  ex-GSM3, USN
Docket No. ND05-00563

Applicant’s Request

The application for discharge review was received on 20050214.  The Applicant requests the characterization of service received at the time of discharge changed to honorable.  The Applicant requests a documentary record discharge 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 20050608.  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 was advised by my local Congressman Honorable T__ H___ to submit this form and provide additional evidence of my medical issues before I was discharged.  I was gone because of medical issues.  I want to be able to return to any other branch of the Armed Forces.  I can’t reenlist because of the RE4 code.  I want to be able to enter another branch because I know the Navy will not accept me again. Mr. H___ had called the VA Board of Appeals and also The Dept Of The Navy regarding my case.  I started feeling pain in both knees right after I graduated from basic training. I did go to medical because the pain was increasing.  I went for examination because not only I felt pain, but also my knees began to lock.  I starting feeling better once I received treatment from a M.D. from the city I live in Michoacan, Mexico.  Sorry, but the treatment I received while I was in the Navy didn’t work for me.  I had better results and started feeling better when I received treatment from the Mexican M.D. I feel better now.  All I’m asking is for another chance.  I want to serve in the Armed Force again.  I know I can not join the Navy again, but I want to be able to fight for my Country again here or overseas.”

REMARKS: Since I can’t join the Navy again because of the RE4 code, is there another way to reenter the Armed Forces?  My Congressman had been helping me to resolve this issue.  I will be more than happy to know I can join the Armed Forces again.
   
Documentation

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

Prescription from M___ B___, M.D. (021129)
Rehabilitation Slip (in Spanish) (B1322427)
Interns Unique Receipt (B1322427)
Medical Document (in Spanish) (021203)
Letter of Notification from J___ S___ G. M.D. (2 pages) (021203)
Letter from Applicant (undated)
Examination Certificate from Technical Institute of Morelia (undated)   
Transcript from Reading Area Community College (2 pages) (050222)
Request for Criminal Record Check (050321)

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	None

Period of Service Under Review:

Date of Enlistment:  000229		Date of Discharge:  040506

Length of Service (years, months, days):

	Active:    04 02 06 (Does not exclude lost time)
	Inactive:  None

Age at Entry:  22			Years Contracted:  4 

Education Level:  12			AFQT:  47

Highest Rate:  GSM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (4)		Behavior:  3.00 (4)		OTA:  3.07

Military Decorations:  None

Unit/Campaign/Service Awards:  NAVY”E”, AFEM, SSDR, NDSM

Days of Unauthorized Absence:  567

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:

000229:	Applicant reported for initial tour of active duty.

000603:	Applicant reported aboard USS George Washington (CVN-73).

010104:	UA over liberty from USS George Washington (CVN-73).
010109:	Applicant surrendered on board USS GEORGE WASHINGTON (CVN-73) at 0845 (5days/S).
 
010420:	Retention Warning:  Advised of deficiency (Based on your self-referral Feb 2001 to the DAPA.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

010604:	Applicant to unauthorized absence.

010710:	Applicant from unauthorized absence (35 days/S).

010801:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86.
	Specification: UA from unit 010604 until 010710(35days/S). 
	Finding:  to Charge I and the specification thereunder, guilty.
	Sentence:  Confinement for 30 days, forfeiture of $250.00 pay per month for 1 month.
	CA action 010824:  Approved the finding of guilty and ordered the sentence approved.

010825:	Retention Warning:  Advised of deficiency (Summary Court-Martial held on 010801 for violation of UCMJ, Article 86, UA from unit from 010604 to on or about 010710.  Adjudged: To be confined for a period of 30 days and to forfeit $250.00 pay per month for 1 month.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	.
010825:	Released from confinement and returned to full duty.

021111:	Reported for duty Service Schools Great Lakes.

021113:	Applicant to unauthorized absence 0800.

040423:	Applicant from unauthorized absence 0800, (527 days).

040423:	Charges preferred to summary court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Unauthorized absence (UA) from 021113 until 040423.

040423:	Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  He waived his 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:  From 021113 until 040423 (527days).  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.  

040427:	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.

040506:	DD Form 214: Applicant discharged

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040506 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:  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 service was marred by two retention warnings, a summary court-martial for a violation of UCMJ Article 86 (unauthorized absence, 35 days), and a further violation of UCMJ Article 86 (unauthorized absence, 527 days) for which the Applicant admitted guilt and requested administrative separation with an under other than honorable conditions discharge characterization in lieu of trial by court-martial.  The Applicant’s two periods of unauthorized absence in excess of 30 days exceed the criteria for administrative discharge in lieu of trial by court-martial, normally characterized as under other than honorable conditions.  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 and falls far short of that required 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 states that the medical treatment he received from the Navy did not lessen the pain in his knees.  The Board found no indication from the service record and documentation provided by the Applicant that he was denied proper medical care for his medical condition.  On 23 April 2004, the Applicant requested discharge for the good of the service to escape trial by court-martial.  In the request for discharge, the Applicant noted that he waived his right to counsel, fully understood the elements of the offense for which he was charged and that he was guilty of the offense.  He further certified a complete understanding of the negative consequences of his actions and that characterization of service would be under other than honorable conditions.  While he may feel that his medical condition and perceived lack of treatment was a factor that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  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.

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.  As of this time, the Applicant has not provided sufficient documentation for the Board to consider.

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), 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 of 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
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