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

FOR OFFICIAL USE ONLY

  ex-FN, USN
Docket No. ND05-01207

Applicant’s Request

The application for discharge review was received on 20050712.  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 20060216.  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’m requesting change in discharge for employment purpose.  It’s hard and sometimes impossible to get employment with a other than honorable conditions discharge.”

Documentation

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

Applicant’s DD Form 214
Applicant’s DD Form 214 from the Army
Letter to Applicant from Review Board Agency, dtd June 29, 2005
Letter to Army Review Board Agency from North Carolina Department of Administration, dtd May 31, 2005
Character Reference ltr from S_ D_, dtd May 26, 2005
Letter from Fayetteville Technical Community College, dtd May 24, 2005
Criminal record check from State of North Carolina, dtd May 26, 2005 (2 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   USA	19940722 - 20001225	HON

Period of Service Under Review:

Date of Enlistment:  20010720		Date of Discharge:  20040428

Length of Service (years, months, days):

	Active:    02  09  08  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:	672 days 
	Confinement:			None
	Unknown*			229 days

Age at Entry:  25

Years Contracted:  4

Education Level:  12				AFQT:  71

Highest Rate:  FN

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 (2), Army Lapel Button, Army Commendation Medal, Army Achievement Medal (2), Army Service Ribbon, Overseas Service Ribbon (2), Expert Marksmanship Qualification Badge with Rifle Bar

* Time lost extracted from DD Form 214
** 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: 

010720:	Applicant enlisted in the United States Navy for a period of four years.

010910:	Applicant to unauthorized absence at 2400 on 010910.

030517:	Applicant from unauthorized absence at 1237 on 030517 (613 days/surrendered).  EAOS changed to 070325.

030530:	Applicant to unauthorized absence at 0630 on 030530.

030606:	Applicant declared a deserter.

030728:	Applicant from unauthorized absence at 2200 on 030728 (59 days/surrendered).  EAOS changed to 070523.

030809:	Applicant commenced a period of Time Lost this date.  [Extracted from DD Form 214.]

040325:	Applicant terminated a period of Time Lost this date.  [Extracted from DD Form 214.]

040415:	The 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.

Service Record contains a partial 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 20040428 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 the Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial; that the Applicant consulted with counsel and was fully advised of the implications of his request; and that he understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment.  The Board further presumed that the Applicant understood 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; that he understood the elements of the offenses with which he was charged; and that he admitted he was guilty of violating Article 86:  unauthorized absence from 20010910 to 20030517 and 20030530 to 20030728.  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.

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 could 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 Board received and considered all of the Applicant’s submissions, including his character reference letter from his wife, his proof of enrollment at Fayetteville Technical Community College, and his criminal records check.  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 additional evidence related to this 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 30 May 2005, 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