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

ex-FA, USN
Docket No. ND03-00827

Applicant’s Request

The application for discharge review was received on 20030411.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, Applicant obtained representation from the American Legion.

Decision

A documentary review was conducted in Washington, D.C. on 20040608.  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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, as stated

Applicant’s issues, as stated on the application:

1.  “At the time of my discharge in 1990, I was told that after five years, I could apply for an upgrade to General Discharge.  It has been over thirteen years, so I am now applying.”

Additional issues submitted by Applicant’s representative (American Legion):

2.  “In accordance with 32 C.F.R., section 724.166, and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to this Applicant’s petition. 

Our review reveals that the service record is incomplete.  The available records show that this former member was awarded NJP on 900509 for VUCMJ, Art. 92.   Not found are the specific UCMJ violations referred for court martial.  On 901128, the Applicant was discharged with an Under Other Than Honorable Conditions in lieu of trail by court martial as authorized by NAVMILPERSMAN, Art. 3630650.

Substantively, as noted on DD Form 293 and attachment, this Applicant is requesting that his discharge be upgraded because he was told that he could apply after five years and because of his post-service conduct.  He has submitted 10 pages of additional documentation attesting to his post-service educational pursuits, and religious and family involvement for consideration.

Following careful review of the evidentiary record, we opine that the issues raised on DD Form 293 and attachment amply advance this former member’s contentions and substantially reflect the probative facts needed for equitable review.  Accordingly, we rest this case on the evidence of record.

The American Legion’s express purpose in providing this statement, and any other submittals or evidence filed, is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C, enclosure (1). 

This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

Applicant’s DD Form 214
Statement from Applicant
Certificate of completion, dated May 24, 2001
Certificate of completion, dated September 4, 1997
Certificate of completion, dated October 1, 1997
Certificate of completion, dated August 13, 1997
Marriage license, dated August 26, 2000
Certificate of completion, dated October 16, 2002
Certificate of achievement, dated December 9, 2002
Certificate of completion, dated October 10, 2002
Certificate of completion, dated December 9, 2002
Certificate of baptism, dated December 29, 2002
TCI camp commissary price list, dated May 1, 2003
Knowing God Through Galatians booklet

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	891017 - 891225	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  891226		Date of Discharge:  901128

Length of Service (years, months, days):

	Active:    00  11  03
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  66

Highest Rate:  FA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF			Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  130

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:

900509:	NJP for violation of UCMJ, Article 92: Fail to obey a lawful order on 900428.
	Award: Forfeiture of $100 per month for 1 month.  No indication of appeal in the record.

900509:	Retention Warning: Advised of deficiency (Fail to obey.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
	Applicant demanded trial by court-martial in lieu of OIC’s mast.

900517:	Applicant to unauthorized absence 0500, 900517.

900616:	Applicant declared a deserter.

900928:	Applicant from unauthorized absence 0133, 900928 (130 days/apprehended).

901128:	DD Form 214: Applicant discharged under other than honorable conditions by reason of separation in lieu of trial by court martial, authority:  NAVMILPERSMAN, Article 3630650.

*Discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19901128 under other than honorable conditions in lieu of a trial by court-martial (A and B).  In the absence of a discharge package, the Board presumed regularity in the conduct of governmental affairs (C) and, after a thorough review of the records, supporting documents, facts, and circumstances unique to this case, found that the discharge was proper and equitable (D and E).

Issue 1.   The Applicant states that he was told that after five years he could have his discharge upgraded.  There is no law or regulation that authorizes a discharge to be automatically upgraded after five years.  A former service member has 15 years, from the date of discharge, to petition the board for consideration of an upgrade.  The Board does not automatically upgrade a discharge after five years.  Relief denied.

Issue 2.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted.  There is no evidence of impropriety or inequity in the Applicant’s discharge.  Therefore, relief is denied.

Outstanding post-service conduct, 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, can be considered.  In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships.  In reviewing the applicant’s post service, the Board noted the efforts he has begun to make in attempting to recoup his reputation, which has been sullied by his misconduct in the Navy.  However, the Applicant has provided insufficient evidence of post-service accomplishments to warrant an upgrade on this basis.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an 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 other evidence related to his discharge 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 15560A), Change 7, effective 
25 May 89 until 14 Aug 91, 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 “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