Author: CAP
Last saved by: Department of the Navy
Company: NCPB

Docket No. ND02-00157

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

 ex-AW3, USN
Docket No. ND02-00157

Applicant’s Request

The application for discharge review, received 011205, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The Applicant requested 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 020731.  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 1910-106 (formerly 3630650).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.)	My discharge was inequitable because it was based on one isolated incident in 72 months of honorable service.  Although it was a zero tolerance offense.  I believe that rehabilitation should have been considered for my years of honorable service.

2.)	I would respectfully like to ask the board to change my discharge, I believe that one isolated incident in 72 months of dedicated service to my country.  The offense was an extremely grave error in judgment that ended a very promising career in the Navy.  To me that was punishment enough. . An upgrade of my discharge is just one of the goals I am undertaking to move forward with my life.  I am continuing my life long education and the loss of my career in the navy is a constant reminder of what can happen when you let your guard down.  We all make mistakes in life and everyone at some point in life needs a second chance so I am respectfully asking you for to upgrade my discharge to a general under honorable conditions for my years of faithful and dedicated service in Navy.

Very Respectfully,  (Signed by Applicant)

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USN			931227 - 971222	HON
	Inactive: USNR (DEP)	930915 - 931226	COG

Period of Service Under Review:

Date of Enlistment:  971223*	Date of Discharge:  000929

Length of Service (years, months, days):

	Active:    02  09  07 (Doesn't exclude lost time.)
	Inactive:  None

Age at Entry:  24			Years Contracted:  6

Education Level:  12			AFQT:  53

Highest Rate:  AW2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.5 (4)	Behavior:  3.25 (4)		OTA:  3.76?? (5.0 evals)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, GCM, SSDR, Battle "E" Ribbon (2)

Days of Unauthorized Absence:  67 

*Reenlistment contract of 971223 not in service record.

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 1910-106 (formerly 3630650).

Chronological Listing of Significant Service Events:

971223:	Reenlisted for 6 years at HSL-48, Mayport, FL.

990924:	NJP for violation of UCMJ, Article 92:  failure to obey order or regulation.
	Award:  Forfeiture of $200 per month for 2 months, extra duty for 15 days, reduction to E-4 (suspended for 6 months).  No indication of appeal in the record.

000613:	NJP for violation of UCMJ, Article 112A:  wrongful use, possession, etc., of controlled substances.
	Award:  Forfeiture of ½ month pay for 2 months, restricted to barracks for 45 days, reduction to E-4.  No indication of appeal in the record.

000630:	Unauthorized absence from Naval Rotary Wing Air Test Squadron, Patuxent River, MD, at 0700, 30 Jun 2000, intentions unknown.

000801:	Report of Declaration of Desertion.  Declared deserter as of 31JUL00.

000925:	Commander, Naval Air Warfare Center, Aircraft Division, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge with an Under Other Than Honorable Conditions.

000927:	Military Medicine, Physical Exam Section, Naval Medical Clinic, NAS, Patuxent River:  Applicant physically qualified for separation.    

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW
Discussion

The Applicant was discharged on 000929 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:  The Applicant's discharge was not based on "one isolated incident in 72 months of honorable service" as stated by the Applicant.  The Board noted that the Applicant received an honorable discharge on December 22, 1997.  However, prior honorable service is not cause for relief.  The Board is authorized to examine only the enlistment during which the other than honorable discharge was awarded.  During the period of service in question, the record indicates two non-judicial punishments and an unauthorized absence ending after 67 days, which resulted in the Applicant being declared a deserter.  As a result of the unauthorized absence, not the use of the controlled substance, a Special Court Martial was convened.  The Applicant was advised of all of his rights and consulted with counsel.  He elected to request an other than honorable discharge in lieu of trial by court martial and his request was granted by the General Court Martial Convening Authority.  Relief denied.

Issue 2:  As previously stated, the Applicant's discharge was not based on a single incident, but a number of incidents ending in a separation in lieu of trial by court-martial.  The following is provided for the benefit of the Applicant.  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.  Relief denied.

The Applicant is reminded 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 an error or injustice that occurred during his processing.  In addition, the Applicant can present any evidence of post-service accomplishments at the personal appearance hearing.  Legal 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 Present, 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 5420.174C 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/A9235/A9219/A9217/A9223/A9231/A9221