Author: CAP
Last saved by: shirley.robertson
Company: NCPB

Docket No. ND04-00098

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

ex-BM3, USN
Docket No. ND04-00098

Applicant’s Request

The application for discharge review was received on 20031017.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests 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 20040720.  After a thorough review of the 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.  “I had gotten burned in a house fire and was being treated at Castle AFB.
2.    I was having marital problems
3.    I was commuting from Sacramento to the Bay area.”

Documentation

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

Applicant’s DD Form 214 (current enlistment)
Applicant’s DD Form 214 (previous enlistment)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR		860429 - 860915	TO REPORT ACDU
	Active:   USNR		860916 - 890818	RELAD
	Inactive: USNR-R		890819 - 900102	HON
	Inactive: USNR (DEP)	900103 - 900910	COG

Period of Service Under Review:

Date of Enlistment:  900911		Date of Discharge:  910125

Length of Service (years, months, days):

	Active:    00  04  15	[Does not exclude lost time]
	Inactive:  None

Age at Entry:  25			Years Contracted:  4

Education Level:  12			AFQT:  43

Highest Rate:  BM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*	Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR (2), AFEM

Days of Unauthorized Absence:  64

*No marks assigned.

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:

900102:	Applicant briefed on Navy's policy of drug and alcohol abuse.
900911:	Applicant reenlisted for 4 years.

901004:	Applicant to unauthorized absence 0715, 901004.

901105:	Applicant declared a deserter.

901205:	Applicant from unauthorized absence 1535, 901205 (61 days/surrendered).

901217:	Applicant to unauthorized absence 0700, 901217.

901217:	Applicant declared a deserter.

901221:	Applicant from unauthorized absence 0615, 901221 (3 days/surrendered).

901214:	Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Unauthorized absence from 901004 to 901205 (61 days/surrendered).

910117:	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 901004 to 901205 (61 days/surrendered).  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.  

910122:	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 19910125 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).

Issues 1, 2 & 3.  The NDRB recognizes that serving in the U.S. Navy is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharges.  In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  The NDRB found that the Applicant's service was equitably characterized.  Relief denied.

On 19910117, the Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial. The Applicant stated he understood the elements of the offense with which he was charged, and admitted he was guilty of the charge preferred against him. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. 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 additional documentation to support any claims of post-service accomplishments or any other evidence relating 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], 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	

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, states:

1.  Basis.  

a.  A member may be separated in lieu of trial by court‑martial upon the member's request if the charges have been preferred with respect to an offense for which a punitive discharge is authorized in the Maximum Punishment Chart, Appendix 13, Manual for Courts‑Martial, 1984, and the member's commanding officer determines that the member is unqualified for further naval service under Article 3610200.  This provision may not be used as a basis for separation when R.C.M. 1003(d) of the Manual for Courts‑Martial, 1984, provides the sole basis for a punitive discharge unless the charges have been referred to a courts‑martial authorized to adjudge a punitive discharge.

b.  A request for an administrative separation under Other Than Honorable conditions in lieu of trial by court martial does not preclude or suspend disciplinary proceedings in a case.  Whether such proceedings will be held in abeyance pending final action on a request for discharge is matter to be determined by the officer exercising general court-martial jurisdiction over the member concerned.  As a condition precedent to approval of the request, the member, if serving in paygrade E-4 or above, must also request administrative reduction to paygrade of E-3.  Upon approval of the request for separation in lieu of trial by court-martial, such member will be reduced to paygrade E-3 pursuant to his or her request.

2. Characterization or description.  Normally under Other Than Honorable Conditions, but characterization as General may be assigned when warranted under the guidelines in MILPERSMAN 3610300.3.b.  Where such a determination is made for a member in entry level status, and an other than honorable characterization is not warranted by the circumstances of the case, separation shall be described as an Entry Level Separation.

3.  Procedures

a.  A member who indicates that he or she desires to submit a request under this article shall be given the opportunity to consult with qualified counsel.  If the member elects to have civilian counsel at his or her own expense, the record shall indicate the name, address, and qualification of the civilian counsel.  If the member refuses to consult with counsel, the commanding officer shall prepare a statement to this effect which shall state that he or she waived the right to consult with counsel.

b.  A member who continues in his or her desire to request a discharge in following this Article, after consultation with counsel or after waiving the right to consult with counsel, shall personally sign the following in proper letter format (where a qualified counsel was consulted, he or she must also sign the request):

From:	(Rate, name, branch and class of service, service number, social security number)
To:	(Officer exercising General Court-Martial Jurisdiction over the member)

Via:	Commanding Officer

Subj:	REQUEST FOR ADMINISTRATIVE DISCHARGE UNDER OTHER THAN HONORABLE CONDITIONS IN LIEU OF TRIAL BY  COURT-MARTIAL.

Ref:	(a) MILPERSMAN 3630650

Encl:	(1) Copy of Court‑Martial Charges
	(2) Copy of a Summary of the Evidence or List of Documents Provided to Member
	(3) Statement (if applicable)

1.  Under the provisions of reference (a), I hereby request an administrative discharge under other than honorable conditions in lieu of trial by court-martial under circumstances which could lead to a bad-conduct or dishonorable discharge.  (Include if serving in pay grade E-4 or higher) I further request that I be administratively reduced to pay grade E-3.

2.  I have consulted with (counsel's rank, name, corps, and branch of service, or if civilian, name, title and address) a member of the Bar in the State of (fill-in) who has fully advised me of the implications of such a request.  The basis for my request for such discharge stems from my misconduct contained in the court-martial charges preferred against me as indicated in enclosure (1).  I understand the elements of the offenses with which I am charged.  I elect to be administratively discharged rather than be tried by court-martial.  I am completely satisfied with the counsel I have received.  

3.  I understand that if this request is approved, characterization of my service as Other Than Honorable is authorized in my case and that I may in fact receive an administrative discharge under Other Than Honorable Conditions.  I understand that such discharge may deprive me of virtually all veterans' benefits based upon my current period of active service and that I may expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered in any branch of the Armed Forces or the character or discharge received therefrom may have a bearing. 

4.  I admit that I am guilty of:  (list the offenses of which the member acknowledges guilt.  These may be lesser included offenses which have been referred to a Special Court-Martial (SPCM) or General Court-Martial (GCM.)  A summary of the evidence provided me pertaining to the offenses to which I acknowledge guilt is included in enclosure (2).

5.  I understand that once this request is submitted it may only be withdrawn, whether or not accepted, with the consent of the officer exercising GCM jurisdiction over me.

6.  I understand that I may submit a sworn or unsworn statement in my behalf.  I also understand that statements submitted by myself or by my counsel in connection with this request are not admissible against me in a court‑martial except as provided by Military Rule of Evidence 410.  I do not desire to submit a statement.  

6.  ALTERNATE. I understand that I may submit a sworn or unsworn statement in my behalf.  I also understand that statements submitted by myself or by my counsel in connection with this request are not admissible against me in a court‑martial except as provided by Military Rule of Evidence 410.  My (sworn/unsworn) statement is submitted herewith as enclosure (3).

7.  This request is voluntarily submitted free from any duress or promises of any kind.  I have asked my counsel, who has fully explained to me the implications of my request, to witness my signature.

8.  I have retained a copy of this request for discharge in lieu of trial by court‑martial and all enclosures related thereto.

9.  (Include if serving in pay grade E-4 or higher).  I understand that if my request for discharge in lieu of trial by court-martial is approved, I will, following this request, be administratively reduced to pay grade E-3, effective the date that my request for discharge is approved.

Signature of member
Name, rate, SSN

Witnessed:	(Signature of counsel)
Name, grade, corps, branch of service 

State licensed

Date

c.  The request for discharge shall be forwarded via the chain of command to the officer exercising GCM jurisdiction over the member concerned.  The member's commanding officer shall recommend approval or disapproval with appropriate justification, certify the accuracy of the court-martial charges, and enclose the following in the forwarding endorsement:

(1) A report of medical examinations and either an opinion from the medical officer that a psychiatric evaluation is not warranted as part of the evaluation processing or a copy of the psychiatric evaluation.  Referral to a psychiatrist shall be made only after examination by a medical officer.  Such referral should be limited, in general, to those cases in which there is reasonable cause to question whether the member could appreciate the nature and quality or wrongfulness of the conduct at the time of the alleged offense and has sufficient mental capacity to understand the nature of the proceedings against the member.

(2) A complete copy of all reports of investigation or a summary of the evidence against the member. 

(3) Any other pertinent information, reports, statements, etc. considered by the commanding officer in arriving at a recommendation.

d.  The officer exercising GCM jurisdiction over the member is authorized to approve or disapprove the request for separation in lieu of trial by court-martial, to order such discharge executed, and to direct reduction to E-3 if the member is in a higher pay grade citing this article as authority.  As an exception, commanding officers authorized to convene SPCMs empowered to award punitive discharges may approve a discharge with an Other Than Honorable characterization for enlisted members who have been absent without authority for more than 30 days, have been declared deserters, have been returned to military control, and are charged only with unauthorized absence for more than 30 days.  The reason for discharge shall be separation in lieu of trial by court-martial.  The member shall not be recommended for reenlistment. 

e.  When final action has been taken on a request for separation in lieu of trial by court-martial, the original request with all enclosures and endorsements shall be sent to COMNAVMILPERSCOM (NMPC-3) for inclusion in the member's permanent record.

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.