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Docket No. ND00-00922

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

 ex-MSSA, USN
Docket No. ND00-00922

Applicant’s Request

The application for discharge review, received 000724, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant listed the American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010201.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Separation in lieu of trial by court martial, authority: NAVMILPERSMAN, Article 3630650.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  (Equity Issue) This former member now regrets his misconduct of record and requests that his character of service be upgraded in that he may reenter the Navy.

2.  (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

Documentation

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

Copy of DD Form 214 (Member 4 and 1)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	900123 - 900422	COG

Period of Service Under Review:

Date of Enlistment:  900423			Date of Discharge:  920424

Length of Service (years, months, days):

	Active:    02  00  02
	Inactive:  None

Age at Entry:  17 Parental Consent		Years Contracted:  4

Education Level:  9 GED			AFQT:  32

Highest Rate:  MSSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (1)	Behavior:  3.60 (1)		OTA:  3.60

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, JMUA, SASM with Bronze Star, SSDR

Days of Unauthorized Absence:  29 

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:  NAVMILPERSMAN, Article 3630650.

Chronological Listing of Significant Service Events:

910731:	NJP for violation of UCMJ, Article 91 (2 specs): Failure to obey a lawful order on 10Jun91, (2) Disrespect to petty officer on 12Jul91, violation of UCMJ Article 117: Wrongful communication of a threat on 12Jul91.
	Award: Forfeiture of $415 per month for 1 month, restriction and extra duty for 15 days.  Forfeiture suspended for 3 months.  No indication of appeal in the record.

910731:	Retention Warning:  Advised of deficiency (Disobey a lawful order of MA1 on 10Jun91, communicate a threat to MS2 on 12Jul91.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

920115:	Applicant declared a deserter.  Unauthorized absence since 0430, 14Jan92.

920212:	Applicant from deserter status.  Applicant apprehended by civil authorities 2330, 12Feb92, returned to military control 0005, 13Feb92 (29 days).

920226:	Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86:
	Unauthorized absence (UA) from 14 January 1992 until apprehended on 13 February 1992 and Article 87: Miss movement on 15 January 1992.

920320:	Applicant requested an administrative discharge under other than honorable conditions in lieu of a trail by court-martial.  He consulted with counsel and was fully advised of the implications of his request.  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 her/him.  Specifically, she/he admitted to violating UCMJ, Article 86: Unauthorized absence from 14 January 1992 to 13 February 1992 and Article 87: Miss the movement of USS ABRAHAM LINCOLN.  The applicant stated he was completely satisfied with he counsel he had received. 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 she/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.

920415:	The commanding officer, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed applicant’s discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 920424 under other than honorable conditions in lieu of a trial by court-martial (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

In the applicant’s issue 1, the Board has no authority to change re-enlistment codes or make recommendations to permit re-entry into the Naval Service or any other of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to re-enlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment.

There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service.  However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D).  Those factors include, but are not limited to, the following:  evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided any documentation of good character and conduct.  Therefore no relief will be granted.  The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

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 91, failure to obey an order upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-Martial.

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 “afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:   A7100/A9241/A9221/A9217