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

FOR OFFICIAL USE ONLY

  ex-ET3, USN
Docket No. ND05-00569

Applicant’s Request

The application for discharge review was received on 20050214.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant designated American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051027.  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:

“I am requesting an upgrade of discharge for convenience of the government.  My command was not going to discharge me.  I requested it, and had I known that an “Under other than honorable” discharge disqualified me from education benefits; I wouldn’t have accepted my legal counsel to request a discharge.  The Summary Court Martial I was to be sent to would not have been able to discharge me.  (UCMJ 820, ART. 20).  

As you can see by my enclosed documents, I was a great sailor.  I ask that you look not at the remainder of my enlistment left to serve, but at the outstanding job I did during my time of service to my country.  It was with honor, courage, and commitment.”

Documentation

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

Applicant’s DD Form 214 (2)
Evaluation Report & Counseling Record (3 partial pages)
Letter of Appreciation for Student Class Leader for Class CAI, dtd February 21, 2001
Certificate of Accomplishment for ET “A” Radar Class 01101
Certificate of Appreciation for Assistant Class Leader
Performance Information Memorandum, dtd December 28, 2001
Designation as Enlisted Surface Warfare Specialist, dtd March 18, 2002
Letter of Appreciation for Superior Performance during Operation Enduring Freedom, dtd March 26, 2002
Designation as Enlisted Aviation Warfare Specialist, dtd April 18, 2002 
Letter of Commendation for Exemplary Performance of duties as IFF Technician
Certificate of Recognition for on site Manager Training three day program, August 19, 20, and 26, 2004
Employment Verification Information, dtd October 18, 2004
American Legion’s Cover Letter, dtd February 1, 2005
Letter of Response to Application from BCNR, dtd September 14, 2004
Commander’s Amphibious Group Three Discharge Approval Letter, dtd January 21, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20000726 – 20000813		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20000814		Date of Discharge:  20040123

Length of Service (years, months, days):

	Active:    03  05  10  (Does not exclude lost time)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:	35 days
	Confinement:			Unknown

Age at Entry:  20 

Years Contracted:  4 (24 month extension)

Education Level:  12				AFQT:  89

Highest Rate:  ET3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.67 (3) 		Behavior:  3.67 (3)		OTA:  3.71

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy Unit Commendation, Navy “E” Ribbon, National Defense Service Medal, Sea Service Deployment Ribbon (2), Flag Letter of Commendation

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: 

031112:	Applicant to unauthorized absence on 031112.

031119:	Applicant declared a deserter this date.

031217:	Applicant from unauthorized absence at 1438 on 031217 (36 days/apprehended by civil authorities).

031217:	Applicant returned to military control 1438, 031217.

031219:	Applicant returned to USS BONHOMME RICHARD.

031220:	Applicant placed in pretrial confinement at 0700, 031220.

040121:	Commander, Amphibious Group Three approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge [Extracted from Applicant’s submissions].

The Service Record was missing elements of the Summary of Service.
The Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040123 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 the 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, 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 an administrative discharge package, the Board presumed regularity in the conduct of government affairs.  The Board presumed the Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial after consultation with counsel and being fully advised of the implications of his request.  The Board further presumed 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 record contains evidence that the Applicant was in an unauthorized absence status for 35 days from 20031112 to 20031217 when he was apprehended.  The Board presumed the Applicant admitted he was guilty of violating Article 86:  unauthorized absence for a period of more than thirty days.  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 he would not have been discharged because the charges against him had been referred to a summary court-martial and under the UCMJ, a summary court-martial does not have the authority to award a discharge.  The Applicant is correct in his assertion that a summary court-martial is powerless to sentence to separate a member from the Naval service.  However, administrative processing is a separate and distinct process from the administration of justice at court-martial.  No law or regulation forbids a command from punishing a service member at summary court-martial and then administratively processing the member for separation from the Naval service based on the same misconduct.  As such, the Applicant’s contention is without merit.  Even if the Applicant is correct in his assertion that he was to be tried at summary court-martial, such an action does not imply that the command had any intention of retaining him in the Naval service.  Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining educational benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

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 post-service documentation for the Board to consider.  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 any additional 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 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, Para 211, Regularity of Government Affairs.  

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