Author: CAP
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Docket No. ND02-00260

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

 ex-RMSR, USN
Docket No. ND02-00260

Applicant’s Request

The application for discharge review, received 020114, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020815.  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, as submitted

1.  The circumstances under which I was discharged were just ones of miscommunication.  I was told that I would get a medical discharge and was told to go home and await my further orders. When I found out the Navy had me down as awol I was shocked.  When I returned to base the counsel I had told me that I could either go to a court marital, in which I could have received a dishonorable discharge, or I could accept the OTH discharge.  I, of course, accepted the latter of the two.  Since I have been out of the Navy I haven't been in any serious trouble at all.  I have since built a family and I am at this time starting a career in nursing.  I respectfully request a review of my records to upgrade my discharge to an honorable discharge.

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	900626 - 910528	COG

Period of Service Under Review:

Date of Enlistment:  910529		Date of Discharge:  931112

Length of Service (years, months, days):

	Active:    02  05  14
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  51

Highest Rate:  RMSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.10 (2)	Behavior:  3.10 (2)		OTA:  3.20

Military Decorations:  None

Unit/Campaign/Service Awards:  SSR, SASM, NDSM

Days of Unauthorized Absence:  97

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:

930331:	NJP for violation of UCMJ, Article 86 (2 specs): (1) Absent without leave from 0715, 19Mar93 until 1657, 29Mar93 (10 days), (2) Unauthorized absence from 1945, 12Nov92 until 2325, 25Nov92 (13 days/surrendered).
	Award: Forfeiture of $407 per month for 1 month, restriction and extra duty for 30 days, reduction to RMSR.  Forfeiture and reduction suspended for 6 months.  No indication of appeal in the record.

930611:	Retention Warning:  Advised of deficiency (Unauthorized absence as evidenced by CO's NJP of 31Mar93 and documented in your service record on NAVPERS 1070/613 and NAVPERS 1070/609.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

930830	Applicant declared a deserter.

931020:	Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Unauthorized absence from 1730, 15Jul93 until 1429, 27Sep93 (72 days) and 0530, 5Jul93 until 1730, 7Jul93 (2 days).

931028:	Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial 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 him. Specifically, he admitted to violating UCMJ, Article 86: Unauthorized absence from 1730, 15Jul93 until 1429, 27Sep93 (72 days) and 0530, 5Jul93 until 1730, 7Jul93 (2 days).  The applicant stated he was completely satisfied with the 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 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.

931103:	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 931112 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:  Although the Applicant claims miscommunication regarding his understanding that he had been told to go home awaiting orders pending a medical discharge, there is no evidence in the official record, nor did the Applicant provide any certifiable documentation to support his claim.  The Applicant was declared a deserter.  This offense could have led to a punitive discharge had the convening authority not accepted the Applicant’s request for separation in lieu of trial by court martial.  The discharge was proper and equitable.  Relief denied.

Issue 2:  The applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable, however, the Applicant requests clemency for post service conduct.  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, a positive employment record, documentation of community service, certification of non-involvement with civil authorities, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  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 post-service accomplishments at that time.  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 5, effective 
05 Mar 93 until 21 Jul 94, 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 [e.g., 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/A9401/A9221/A7101