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

ex-FR, USN
Docket No. ND04-00643

Applicant’s Request

The application for discharge review was received on 20040309.  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 20041112.  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. “My discharge was inequitable because it was based on one incident in the length of time I was enlisted in the service & if I had of known what I know now I wouldn’t have gotten out of the service wish I can get my re-enlistment code change so I may return into the service but if not, could I just have my discharge upgraded please Sir/Ma’am.  Thank you. A_ C_ (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):

	Inactive: USNR (DEP)	910703 - 910709	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  910710		Date of Discharge:  921001

Length of Service (years, months, days):

	Active:    00  06  03
	Inactive:  None

Age at Entry:  22			Years Contracted:  4 

Education Level:  12			AFQT:  33

Highest Rate:  FR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*	Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  263 

* No Marks Available

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:

920114:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 920114 having been an unauthorized absentee since 2200, 911213 from SERVSCOLCOM GREAT LAKES IL.

920904:	Report of Return of Deserter.  Applicant apprehended by civil authorities on 920901 (0348) at Bridgeton, MO.  Returned to military authorities at 920902 (0845).  Received onboard TPU GLAKES, IL.

921001:	Applicant discharged under other than honorable conditions by reason of Separation in Lieu of Trial per MILPERSMAN 3630650 & CO, TPU LTR SER 05/0569 of 92SEP29 [Extracted from DD Form 214 (no signature)].

NO DISCHARGE PACKAGE AVAILABLE  

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19921001 under other than honorable conditions in lieu of a trial by court-martial (A and B).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this, the Board found that the discharge was proper and equitable (C and D).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (E).    
 
Issue 1:  The Applicant states his discharge was based on one isolated incident.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  In the absence of a complete discharge package, the Board presumed regularity of governmental affairs.  The Applicant’s service record is marred by declaration as a deserter and 263 days of UA before being apprehended by civilian authorities.  Therefore, the Board presumed the Applicant requested discharge to escape trial by court-martial, had the elements of the offense(s) for which he was charged fully explained by counsel, that he was guilty of the offense(s) and that he had a complete understanding of the negative consequences of his actions.  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.

Concerning a change in reenlistment code, 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.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

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, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   At this time, the Applicant has not provided verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  

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 15560C), effective 15 Aug 91 until 
04 Mar 93, 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 9, paragraph 9.3, EQUITY OF THE DISCHARGE. 

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 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

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