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

FOR OFFICIAL USE ONLY

 ex-AN, USN
Docket No. ND05-01016

Applicant’s Request

The application for discharge review was received on 20050601.  The Applicant requests his 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 a civilian counsel as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051020.  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 characterization of the 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:

“Documentation provided

(P601-6R, DD Form 214, Essay - #16”

Representative submitted no issues.

Applicant’s Remarks:  (Taken from the DD Form 293.)

“The was never any disciplinary action taking by me being AWOL from the U.S.N.  Also as a civilian since I got O.T.H. I have not been able to get a job.  Now that I am in college I’m just trying to fix past and move on.  I now am married and have 3 children.  By not having a job do to my discharge it is very hard.  All I’m asking is for help please”.

Documentation

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

Applicant’s DD Form 214
Three pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19990619 – 19990627	COG	
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19990628		Date of Discharge:  20020508

Length of Service (years, months, days):

	Active:    02 10 11  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  358 days
	Confinement:		  None

Age at Entry:  20

Years Contracted:  4

Education Level:  12				AFQT:  34

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (1)			Behavior:  3.0 (1)		OTA:  3.00

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  None.  

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).  Discharged in absentia.

Chronological Listing of Significant Service Events: 

010504:	Applicant to unauthorized absence at 0700 on 010504.

010523:	Applicant declared a deserter.

020422:	Applicant from unauthorized absence at 2100 on 020422 (353 days/apprehended by civilian authority, 020407).

020430:	Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86:  In that Airman W_ P. K_ (Applicant), U.S. Navy, on or about 0700, 04 May 2001 without authority, absent himself from his organization, to wit: FITRON One Zero Three, located at Virginia Beach, VA, and did remain so absent until on or about 2100, 22 April 2002.

020430:	The Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  He waived his right to consult counsel.  The Applicant stated he understood the elements of the offense with which he was charged, and admitted he was guilty of the charge preferred against him.  The Applicant acknowledged 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.

020502:	Applicant to unauthorized absence on 020502.

020507:	Commanding Officer, Transient Personnel Unit, Great Lakes, approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge as other than honorable.

Service record was missing elements of the summary of service and contains only a partial administrative discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged, in absentia, on 20020508 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).

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.  An under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by an unadjudicated violation of UCMJ Article 86 (unauthorized absence, 358 days).  The record contains the Applicant’s letter requesting discharge under other than honorable conditions to escape trial by court-martial and admitting guilt to the charges preferred against him. Furthermore, his request outlines his understanding of the negative consequences of his actions.   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 short of that required for an upgrade of his characterization of service.  Relief is not warranted.

In the absence of a complete service record and discharge package, the Board presumed regularity of governmental affairs.  The Applicant’s letter requesting discharge left little doubt that the Applicant was properly processed in accordance with reference (A).  The Applicant’s letter requested discharge to escape trial by court-martial, acknowledged his guilt, and documented his 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 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 Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing medical, employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  This issue is without merit, relief denied.

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 stated that he is attending college, but offered no documentation, he also declared that he is now married, and the father of three children.  After careful consideration, the Board concluded the Applicant’s post-service achievements have been 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 29, effective 
11 Jul 2000 until 21 Aug 2002, Article 1910-106 (formerly 3630650), SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B.  A punitive bad conduct discharge may be adjudged for a 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