ex-HM3, USN
ND06-01033

Current Discharge and Applicant’s Request:

Application Received:  				20060801     
Narrative Reason for Separation:			IN LIEU OF TRIAL BY COURT MARTIAL
Character of Service:				
Discharge Authority:				MILPERSMAN 1910-106
Last Duty Assignment/Command at Discharge:	NTTC, MONTEREY, CA

Applicant’s Request:
	Narrative Reason change to:		nONE REQUESTED
	Characterization change to:		
	Review Requested:			
Representation:  					

Decision:

Date of Decision:					20070628     
Location of Board:				Washington D.C.
Complete Service Record:				
Complete Medical Record:			
Complete Discharge Package:			

Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall  .

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				19880112-19880222 
Active:        		               		19880223-19940422 
Period of Service Under Review:
Date of Enlistment:  				20010816
Years Contracted:  				      
Date of Discharge:				20021001
Length of Service:				01  Yr  01  Mo  06  Days
Time Lost During This Period:			248 DAYS
Days Unauthorized Absence:			248 DAYS
Days Confinement:				NONE   

Education Level:  				
Age at this Enlistment:  				
AFQT:  						87
Highest Rate/Rank:				HM3

Performance Evaluation Averages (number of marks):
Performance:					NONE
Behavior:					NONE
OTA:						NONE

Awards and Decorations (as listed on the DD Form 214):
NATIONAL DEFENSE SERVICE MEDAL (2), NAVY UNIT COMMENDATION MEDAL, MERITORIOUS UNIT COMMENDATION MEDAL, SEA SERVICE DEPLOYMENT RIBBON, KUWAIT LIBERATION MEDAL, NAVY "E" RIBBON, COMBAT ACTION RIBBON, SOUTHWEST ASIA SERVICE MEDAL WITH 2 CAMPAIGN STARS, GOOD CONDUCT MEDAL.

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

20020102:	Applicant to unauthorized absence at 1800 on 20020102.

20020907:	Applicant from unauthorized absence at 0150 on 20020907 (248 days/surrendered).

20020909:	Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86:  Unauthorized absence (UA) from 1800, 20020101 until 0150, 20020907.

20020909:	Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  He acknowledged his right to consult an attorney and waived those rights.  The Applicant stated he understood the elements of the offense with which he was charged, and admitted he was guilty of all the charges preferred against him.  Specifically, he admitted violating UCMJ, Article 86 (unauthorized absence) by remaining absent from his assigned place of duty from 20020102 until 20020906.  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.  

20020912:	Commanding Officer, Transient Personnel Unit, Great Lakes, approved the Applicant’s request for administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge as under other than honorable conditions in accordance with MILPERSMAN 1910-106.

Elements of Discharge  [REQUESTED BY MEMBER]

Discharge Process:					Voluntary:  Requested by Member
Date Member Requested Separation:			20020909
Member Requested Separation Due To:			IN LIEU OF TRIAL BY COURT MARTIAL
Characterization Requested:				UNDER OTHER THAN HONORABLE CONDITIONS
member Recognized Least Favorable:			UNDER OTHER THAN HONORABLE CONDITIONS
Recommendation of Commanding Officer:			NOT APPLICABLE
Discharge directed by (date):		COMMANDING OFFICER TRANSIENT PERSONNEL UNIT GREAT LAKES
Narrative reason directed:					IN LIEU OF TRIAL BY COURT MARTIAL
Characterization directed:					UNDER OTHER THAN HONORABLE CONDITIONS
Date Applicant Discharged:				20021001     

Additional Information Considered by Board

Type of documentation submitted by the Applicant and considered by the Board
       
       	Document Type					#Pages
       Related to Period of Service Under Review:
	Service/Medical Record:				4
	Other Period of Service:				0
       Related to Post-Service Period:
	Community Service:				0
	Education:					0
	Employment:					0
	Health/Medical:					0
	Character Statements:				0
	Criminal Records Checks:				0
	Additional Statements from Applicant:		0
        Other Documentation	 (Describe Below)		0

        Total Number of Pages:				4

Applicant’s Issues as Summarized by the Board:

The Applicant submitted the following issues. 

1.  Equity – One incident and his prior honorable service

Decisional Issues:
The Board considered the following issue:     

Issues 1 and 2:  The Applicant states his discharge was based on one isolated incident.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from naval service in order to maintain proper order and discipline.  The record documents the Applicant’s extended unauthorized absence, and subsequent request for discharge in lieu of trial by court martial, which is the basis for his discharge.  The Applicant waived his right to consult an attorney, admitted guilt to the charges preferred against him, acknowledged the under other than honorable conditions characterization of service and the future ramifications of such a characterization of service.  Regulation limits the Board’s review to a determination of the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers his discharge proper and equitable.  

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until Present, Article 1910-106 (formerly 3630650), SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B.   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 V, Para 502, Propriety  and  Para 503, Equity.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  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”.

Additional Reviews:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  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.

Employment/ Educational Opportunities:  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.  

Reenlistment/ RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades -  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 may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

Issues Concerning Bad-Conduct Discharges (BCD) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  

Board Membership:  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