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

FOR OFFICIAL USE ONLY

ex-PRAN, USN
Docket No. ND06-00624

Applicant’s Request

The application for discharge review was received on 20060403.  The Applicant requests that 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 20070125.  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 - ISSUES AND DOCUMENTATION

Decisional Issues

Equity – Post service

Equity – Quality of service

Equity – Isolated incident (one bad decision)

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214 (Member 4)
Applicant’s DD Form 214 from Army/ARNGUS for period April 15, 2005 to October 	21, 2005
Applicant’s Certificate of Achievement from Indiana Army National Guard, dated 	September 18, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19960626 - 19970617	ELS
	Active:    USNR	19971027 - 19991026	HON

Period of Service Under Review:

Date of Enlistment:  20000502		Date of Discharge:  20011213

Length of Service (years, months, days):

	Active:    01  07  12  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  264 days
	Confinement:		  None

Age at Entry:  21

Years Contracted:  4

Education Level:  12				AFQT:  87

Highest Rate:  PRAN

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):  None

* 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: 

000824:	NJP for violation of UCMJ, Article 86:  Unauthorized absence from 0445, 000816 to 0700, 000816.
Violation of UCMJ, Article 112: Drunk on duty.
	Award:  No further information found in service record.  [Details extracted from Retention Warning dated 000824.]

000824:	Retention Warning:  Advised of deficiency (Commanding Officer’s nonjudicial punishment on 000824 for VUCMJ Art 86, Unauthorized absence.  UA from 0445, 000816 to 0700, 000816; VUCMJ, Art 112, drunk on duty.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010219:	Applicant to unauthorized absence at 0600 on 010219.

010227:	Applicant missed ship’s movement.

010321:	Applicant declared a deserter.

010322:	Applicant from unauthorized absence at 1000 on 010322 (31 days/surrendered).

010327:	Applicant to unauthorized absence at 0001 on 010327.

011109:	Applicant apprehended by civilian authorities at Portage, IN at 0030, 011109.

011115:	Applicant from unauthorized absence at 0910 on 011115 (233 days/apprehended).

011126:	Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86:  On active duty, did, on or about 0001, 010327 without authority, absent himself from his organization, to wit: USS ENTERPRISE (CVN 65), and did remain so absent until on 0910, 011115.

011126:	Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  The Applicant stated he understood the elements of the offense(s) with which he was charged, and admitted he was guilty of all the charges preferred against him.  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.  

011129:	The Commanding Officer, Transient Personnel Unit, Great Lakes, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge.

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 20011213 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).  

Equity – Post service:  The Applicant states that he has served honorably in the National Guard and that he has matured since the time of his misconduct. 

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered.  The Applicant provided a DD214 and a Certificate of Achievement from the National Guard as documentation of  his post-service accomplishments.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities.  The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge.  Therefore, no relief will be granted.

Equity – Quality of service:  The Applicant states that his “previous tour in the Navy was honorable.” 

In the Applicant’s case, the period of service under review is 20000502 to 20011213.  An under other than honorable conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s service was marred by a retention warning and a nonjudicial punishment proceeding for violations of Articles 86 (unauthorized absence) and 112 (drunk on duty) of the UCMJ.  Violation of UCMJ Article 112 is considered a serious offense, for which a punitive discharge is authorized if adjudged by special or general court martial.  In addition, the record shows that the Applicant’s service included the commission of serious offenses that were not adjudicated; Article 86, a UA period of 31 days, and Article 87, missing movement.  The retention warning, NJP, and non-adjudicated misconduct, are in addition to the preferral of charges to a special court martial for the Applicant’s 233 day period of unauthorized absence, which resulted in his request for separation in lieu of court martial.  The Applicant’s cumulative period of unauthorized absence totals 264 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 and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

Equity – Isolated incident: The Applicant states that he made a bad decision during his second enlistment.  

Despite a servicemember’s prior record of service, certain serious offenses warrant separation from the Naval service in order to maintain proper order and discipline.  Violation of UCMJ Article 86 (unauthorized absence for a period more than 30 days) is considered a serious offense, for which a punitive discharge is authorized if adjudged by a special or general court martial.  In a signed statement, the Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  He consulted with counsel and was fully advised of the implications of his request.  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 Applicant stated he understood the elements of the offenses with which he was charged.  He admitted he was guilty of violating Article 86, unauthorized absence for a period more than 30 days.  Relief denied. 

For the edification of the Applicant, Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  Reenlistment policy of the U.S. Navy is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

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), 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.

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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