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

FOR OFFICIAL USE ONLY

   ex-SR, USNR
Docket No. ND05-01432

Applicant’s Request

The application for discharge review was received on 20050829.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  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 20060504.  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 a trial by court-martial.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“So I can receive my veterans benefits.”

Documentation

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

VA Benefits Eligibility Information
Applicant’s DD Form 214 (2)
Medical Documents (9 pgs)

PART II - SUMMARY OF SERVICE

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

	Inactive:  None
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19900228		Date of Discharge:  19910829

Length of Service (years, months, days):

	Active:    01  00  14  (Does not exclude lost time.)
	Inactive:  00  05  17

Time Lost During This Period (days):

	Unauthorized absence:  120 days
	Confinement:		  none

Age at Entry:  25

Years Contracted:  8

Education Level:  12				AFQT:  25

Highest Rate:  SR

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.

* Not Available

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/separation in lieu of trial by court martial, authority:  MILPERSMAN, Article 3630650.

Chronological Listing of Significant Service Events: 

900815:	Commenced active duty for a period of 36 months.

910219:	Applicant to unauthorized absence at 2201 on 910219.

910326:	Report of Declaration of Deserter.  Applicant declared a deserter on 910321 having been an unauthorized absentee since 2201, 910219 from USS SAN BERNARDINO (LST 1189).

910618:	Applicant from unauthorized absence at 1630 on 910618 (120 days/apprehended).

910620:	Report of Return of Deserter.  Applicant apprehended by Henrico County Sheriff Dept, Richmond, VA on 1630, 910618.  Returned to military control 910619 (1330).  Retained onboard for discipact/disposition at TPU NORVA.

Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19910829 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).

The Applicant bears the burden of establishing his issues through the presentation of substantial and credible evidence.  There is no evidence in the record, nor has the Applicant produced any evidence, that the discharge was not proper and equitable. The Board presumed that charges were preferred for violation of the Uniform Code of Military Justice (UCMJ) and that these charges were referred to a court-martial. The Board presumed that the Applicant understood the elements of the offense(s) with which he was charged and admitted guilt in lieu of trial. The Board presumed that the Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial, was afforded counsel, and fully advised of the implications of his request.  The Board presumed that the Commanding Officer exercising GCMCA approved the request for an administrative separation in lieu of a trial by court-martial, directing the Applicant’s discharge. Relief is unwarranted.

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.  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.  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), effective 15 Aug 91 until 
04 Mar 93, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR 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 – absence without leave, more than 30 days and terminated by apprehension.

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