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

FOR OFFICIAL USE ONLY

 ex-ABEAA, USN
Docket No. ND06-00823

Applicant’s Request

The application for discharge review was received on 20060502.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requested a personal appearance hearing discharge review before the Board in the Washington, D.C. Metropolitan area.  The Applicant did not designate a representative on the DD Form 293.  The Board, on its motion, advised the Applicant that it would conduct a documentary review of his discharge, and that regardless of whether or not relief is granted, the Applicant would retain the right for a personal appearance hearing provided that the Board received a new DD Form 293 petition within 15 years of the date of discharge.

Decision

A documentary review was conducted in Washington, D.C. on 20060502.  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

Applicant’s Issues, as summarized by the Board

1.  Desire second chance to serve honorably
2.  Make better life for family (spouse and 3 children)
Documentation

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

Applicant’s DD Form 214 (Member-4)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19991023 - 19991101	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19991102		Date of Discharge:  20010621

Length of Service (years, months, days):

	Active:    01  07  20  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  At least 85 days
	Confinement:		  20 days

Age at Entry:  19

Years Contracted:  4 

Education Level:  Unable to determine	AFQT:  38

Highest Rate:  ABEAA

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: 

991023:	Pre-service waiver approved for one (1) Chart “C” offense (Criminal Mischief).

000530:	Applicant to unauthorized absence at 0600.

000602:	Applicant missed ship’s movement.

000629:	Applicant declared a deserter.

000718:	Applicant missed ship’s movement.

000729:	Applicant missed ship’s movement.

000804:	Applicant missed ship’s movement.

000823:	Applicant from unauthorized absence at 2005 (85 days/surrendered).

000826:	Pre-trial confinement from 000826-000906 (12 days).
	[Extracted from Court Memorandum dated 001108 and DD 214]

000906:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86:
	Specification: UA from unit 000530 to 000823.
	Charge II: violation of the UCMJ, Article 87:
	Specification: Missing Ship movement.
	Charge III: violation of the UCMJ, Article 134:
	Specification: Breaking restriction
	Finding: Not found in record.
	Sentence: Confinement for 30 days.
	CA action 001001:  Sentence approved and ordered executed.

000906:	To confinement. 
	[Extracted from Court Memorandum dated 001108 and DD 214]

000913:	From confinement (8 days).
	[Extracted from Court Memorandum dated 001108 and DD 214]

001018:	Applicant began period of lost time.
	[Extracted from DD Form 214]

010527:	Applicant ended period of lost time (227 days).
	[Extracted from DD Form 214]

010621:	DD Form 214: Applicant discharged under other than honorable conditions by reason of in lieu of trial by court-martial, authority MPM 3630650. 

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 20010621 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).  

In the absence of a complete discharge package, the Board presumed regularity of governmental affairs (E).  As such, the Board concluded that the Applicant’s period of lost time from 20001018 to 0010527 was due to being in an unauthorized absence/deserter status.  The Board presumed that the Applicant was charged with an offense for which a punitive discharge was authorized: requested, in accordance with applicable regulations (i.e. consulted, or waived consultation, with counsel, voluntarily submitted a request for administrative separation in lieu of trial by court-martial, acknowledged understanding of the elements of the offense or offenses of which he was charged, acknowledged guilt to such offense or offenses, and acknowledged his understanding of the consequences of a discharge under other than honorable conditions); and that the Applicant’s request was properly approved by an appropriate Separation Authority.   The evidence of record supports the conclusion that over half of the Applicant’s approximately 20 calendar months of service was spent either in an unauthorized absence/desertion status or in confinement due to appropriate punishment for misconduct.  It 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.

In regard to the Applicant’s issues, the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces.  Reenlistment policy of the Navy and Marine Corps is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054 and Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134, respectively.  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.  

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 of the propriety and equity of the discharge.  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 the service.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge 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.  Verifiable proof of post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  At this time, the Applicant has not provided any documentation for the Board to consider an upgrade.

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, Absence without leave 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 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 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