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Docket No. ND04-00223

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

ex-STGSA, USN
Docket No. ND04-00223

Applicant’s Request

The application for discharge review was received on 20031119.  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 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 20040728.  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/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.  “Upgrade of Discharge.”

2.  “Change of Re-entry Code or Separation Code”

Documentation

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

Copies of DD Form 214 (2)
Cover Letter dated November 3, 2003
Reference Letter dated July 22, 2003
Reference Letter dated October 20, 2003
Reference Letter from J__ G___, Director Abbeville County School District Alternative School 

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	950807 - 951219	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  951220		Date of Discharge:  961008

Length of Service (years, months, days):

	Active:    00  09  19
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (24 months extension) 

Education Level:  12			AFQT:  82

Highest Rate:  STGSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*	Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None 

*No Marks made available for review.

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:

960613:	NJP for violation of UCMJ, Article 86: (2 Specifications), Unauthorized absence.
	Award:  Forfeiture of $200.00 pay per month for 1 month, restriction and extra duty for 15 days.  No indication of appeal in the record.

960805:	Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 92: (2 Specifications), violating a lawful general regulation, to wit: U.S. Navy Regulation Article 1159, dated 14 September 1990, by wrongfully possessing a 9mm pistol, serial number P1018029, and 40 rounds of ammunitions. Article 134: On or about 960628, wrongfully endeavored to impede a lawful search of his pullover jacket, which was subsequently found to contain a 9mm pistol, serial number P018029.

960821:	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: 92: (2 Specifications; Specification 1: Did at Fleet Anti-Submarine Warfare Training Center, San Diego, California, on or about 960628, violate a lawful general regulation, to wit: U.S. Navy Regulations Article 1159, dated 14 September 1990, by wrongfully possessing a 9mm pistol, serial number P018029, onboard Fleet Anti-Submarine Warfare Training Center, San Diego, California, a base under naval jurisdiction; Specification 2: Did at Fleet Anti-Submarine Warfare Training Center, San Diego, California, on or about 960628, violate a lawful general regulation, to wit: U.S. Navy Regulations Article 1159, dated 14 September 1990, by wrongfully possessing 40 rounds of 9mm ammunition, onboard Fleet Anti-Submarine Warfare Training Center, San Diego, California, a base under naval jurisdiction.  Article 134: Did at Fleet Anti-Submarine Warfare Training Center, San Diego, California, on or about 960628, wrongfully endeavored to impede a lawful search of his pullover jacket, which was subsequently found to contain a 9mm pistol, serial number P018029.  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.  

960911:	Commanding Officer, Fleet Anti-Submarine Training Center to Commander, Training Command, U.S Pacific Fleet, San Diego, CA recommending Applicant discharged Under Other Than Honorable Condition in Lieu of Trial by Court Martial.

960926:	Commander, Training Command, U.S Pacific Fleet, San Diego, CA 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 19961008 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).

On 19960821, 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. 

Issue 1.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) on one occasion and a special court-martial for violations of articles 86 and 92 of the UCMJ.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable or under honorable (general) characterization of service.  Relief denied.

Issue 2.  The NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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 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 [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 “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

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.