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

FOR OFFICIAL USE ONLY

  ex-AN, USN
Docket No. ND05-01017

Applicant’s Request

The application for discharge review was received on 20050526.  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 did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060224.  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 and/or attached document/letter:

“I C_ E_ L_(Applicant) (SSN# deleted) AM REQUESTING AN UPGRADE OF MY DD PAGE 214 BECAUSE OF THE FOLLOWING:

I C_ L_(Applicant) HAD BEEN HAVING MARRITAL PROBLEMS WHILE ON ACTIVE DUTY.  I WAS INFORMED BY MY WIFE IF I RETURNED HOME WE COULD WORK THROUGH OUR PROBLEMS.  I THEN SPOKE WITH MY CHAPLIN ON NUMEROUS OCCASIONS.  THE CHAPLIN INFORMED ME THAT I WOULD NOT BE ALLOWED TO RETURN HOME BECAUSE I WAS A FLIGHT RISK, DUE TO MY MARRITAL PROBLEMS.  AGAINST BETTER JUDGEMENT I THEN RETURNED HOME TO TRY TO SALVAGE MY MARRIAGE.  UPON RETURNING HOME I FOUND THAT MY WIFE WAS WITH ANOTHER MAN AND MY MARRIAGE WAS INFACT NOT SALVAGABLE.  SHE DIVORCED ME AND THEN MARRIED MY FRIEND.  ON MY WAY BACK TO BASE I WAS PULLED OVER AND THEN ARRESTED FOR SPEEDING AND UNAUTHORIZED ABSENCE.  I WAS THEN SENT TO NORFOLK NAVAL BRIG WHERE I WAS DISCHARGED UNDER OTHER THAN HONORABLE CONDITIONS IN LIEU OF TRIAL BY COURT MARTIAL.  I AM NOW TRYING TO REINLIST INTO THE UNITED STATES ARMED FORCES.  I WOULD GREATLY APPRIECIATE AN UPGRADE OF MY DD PAGE 214.  HOWEVER I DO ACCEPT FULL RESPONSIBILITY FOR MY ACTIONS WHILE ON ACTIVE DUTY.

SINCERLY,

C_ E_ L_(Applicant)
FORMER UNITED STATES SAILOR”

Documentation

Only the service record was reviewed.  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)	20000731 - 20010320	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010321		Date of Discharge:  20020626

Length of Service (years, months, days):

	Active:    01  03  06  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:	53 days
	Confinement:			None*
	Unknown			35 days**

Age at Entry:  18

Years Contracted:  4 (12 month extension)

Education Level:  8 (Job Corps)			AFQT:  36

Highest Rate:  AN

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

*There is no evidence in the record to suggest the Applicant served the 3 days of confinement at bread and water awarded to him at nonjudicial punishment.
**Extracted from the DD-214, Block 29, Dates of Time Lost During This Period.
***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 1910-106 (formerly 3630650).

Chronological Listing of Significant Service Events: 

011123:	Applicant to unauthorized absence at 0700 on 011123.

011126:	Applicant from unauthorized absence at 0820 on 011126 (3 days/surrendered).

011214:	NJP for violation of UCMJ, Article 86:  UA fm unit fm 011123 to 011126.
Violation of UCMJ, Article 121:  Wrongful appropriation of flight deck boots, of some value property of IC2 on or about 011118.
	Award:  Forfeiture of $150.00 pay per month for 2 months, bread and water for 3 days.  No indication of appeal in the record.

020225:	Applicant to unauthorized absence.  [Extracted from DD Form 214, Block 29.]

020415:	Applicant from unauthorized absence (50 days).  [Extracted from DD Form 214, Block 29.]

020423:	Applicant commenced a period of time lost, this date.  [Extracted from DD Form 214, Block 29.]

020527:	Applicant terminated a period of time lost, this date (35 days).  [Extracted from DD Form 214, Block 29.]

020626:	DD Form 214:  Applicant discharged under other than honorable conditions in lieu of a trial by court-martial, authority, MILPERSMAN, Article 1910-106.

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

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020626 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 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).

In the absence of a complete discharge package, the Board presumed that the Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial and that he consulted with counsel and was fully advised of the implications of his request.  The Board further presumed that 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; 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; and that the Applicant stated he understood the elements of the offenses with which he was charged.  The Board presumed that he admitted he was guilty of violating Article 86:  unauthorized absence in excess of 30 days.  An under other than honorable conditions discharge is warranted when a member's conduct involves one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.  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 his misconduct was the result of stress caused by his marital problems.  The NDRB recognizes that serving in the U.S. Navy is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that many members of the Navy endure hardships similar to those of the Applicant.  It must further be noted that the vast majority of those members do not commit misconduct as a result of their problems.  Despite their hardships, these sailors are still able to serve honorably and therefore earn their honorable discharges.  In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  The NDRB found that the Applicant's service was equitably characterized.  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 employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

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), 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 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