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Docket No. ND01-01073

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

 ex-OSSA, USN
Docket No. ND01-01073

Applicant’s Request

The application for discharge review, received 010817, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020328.  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/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 3630650.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  I am requesting a hearing to appear and review my military records for the purpose of upgrading an Other Than Honorable discharge render on or around May 13, 1997.  I was unavoidably detained and hospitalized in the Washington, DC area, preventing me from returning to active duty in Virginia.  I was under the medical care of Dr. K_ of the Bethesda Naval Medical Center (See attachments).  Also I was experiencing grave financial/family hardships.  I contend that I had no control over the matters and humbly request an upgrade of my Other Than Honorable discharge for this discharge does not justify my service to my country.  In addition, the current classification creates a stigma of this perception, that negatively impacts one's decision making regarding my work ethics.  I am a very hardworking man who wish to make a positive contribution to this society, through continuing my education and gaining respectable employment.  In light of circumstances please review the attached documents in this entirety.

Documentation

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

Letter from applicant to House of Representatives dated January 30, 1998
Character reference, Administrative Assistant, State's Attorney's Office
Character reference dated July 12, 2001
Character reference dated July 1, 2001
Character reference dated July 9, 2001
Character reference dated July 12, 2001
Copy of DD Form 214 (Member 1)
Copy of fax cover sheets dated January 26, 1998 and January 30, 1998
Thirty-four pages from applicant's medical record
Copy of leave request/authorization dated February 4, 1997
Copy of leave request/authorization dated February 24, 1997
Copy of individual leave slip dated February 24, 1997
Copy of prisoner/detainee special request/authorization dated April 26, 1997
Copy of prisoner/detainee special request/authorization dated April 29, 1997
Copy of prisoner/detainee special request/authorization dated April 30, 1997

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	960223 - 960325	COG

Period of Service Under Review:

Date of Enlistment:  960326		Date of Discharge:  970513

Length of Service (years, months, days):

	Active:    01  01  18
	Inactive:  None

Age at Entry:  30			Years Contracted:  4

Education Level:  12			AFQT:  49

Highest Rate:  OSSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  146

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority:  NAVMILPERSMAN, Article 3630650.

Chronological Listing of Significant Service Events:

961030:	Applicant to unauthorized absence 0730, 30Oct96.

970129:	Applicant from unauthorized absence 1730, 29Jan97 (90 days/ surrendered).

970219:	Applicant to unauthorized absence 0730, 19Feb97.

970414:	Applicant apprehended by Andrews Security Police Department for civil charges on 1405, 14Apr97.  Applicant lodged in Prince Georges County Detention Center.

970416:	Applicant released to NACIC, Great Lakes, IL at 0925, 16Apr97 and delivered to TPU 1350, 16Apr97 (56 days/apprehended).  Civil charges pending.

970416:	Applicant found fit for confinement.

Separation package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 970513 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).

Issue 1 states that there were financial and medical mitigating circumstances that lead to his discharge.  The applicant elected separation with an Other Than Honorable discharge in lieu of trial by court martial.  He therefore admitted guilt to all charges made against him.  The Board carefully considered the applicant’s official records, and all available documents associated with this case.  The Board determined that the documentary evidence provided was insufficient to refute the presumption of regularity in the conduct of government affairs.  Relief based on this issue is denied.

Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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.  However, 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 any 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.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct.  The applicant did not provide any of these documents.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required. 

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 
03 Oct 96 until 11 Dec 97, 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, 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 5420.174C 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 “afls10.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/A9321/A9303/A9217/A9221