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Docket No. ND04-00928

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

ex-RMSA, USN
Docket No. ND04-00928

Applicant’s Request

The application for discharge review was received on 20040518.  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.

Decision

A documentary review was conducted in Washington, D.C. on 20041222.  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.

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “Although I regret not having an successful military career, I highly look toward the future as serving my city, state, and nation as an firefighter.  Granting if the board upgrade my OTH discharge.  Having learnt many life lessons since the Navy, I currently work as a bus operator for Birmingham City Transit Authority.”

Documentation

In addition to the service record, NO DISCHARGE PACKAGE AVAILABLE, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	911028 - 920831	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  920901		Date of Discharge:  940815

Length of Service (years, months, days):

	Active:    01  11  18 (Lost time not excluded)
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  11			AFQT:  33

Highest Rate:  RMSA

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:  302

*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:

930107:	Retention Warning:  Advised of deficiency (Applicant found guilty at Officer in Charge, NJP for violation of the UCMJ, Article 86: Unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

930530:	Unauthorized absence from USS SHREVEPORT (LPD-12), at Pier 2, Naval Station Norfolk, VA at 0600, 930530.

930530:	Surrendered on board USS SHREVEPORT (LPD-12) at Pier 2, Naval Station Norfolk, VA at 0730, 930530.
 
930610:	NJP for violation of UCMJ, Article 92: Failure to obey and lawful order and dereliction of duty, violation of UCMJ, Article 117: Provoking speeches.
	Award:  Confinement on Bread & Water for 3 days, forfeiture of ½ pay per month for 2 months (suspended for 6 months), extra duty for 15 days.  No indication of appeal in the record.

930628:	NJP for violation of UCMJ, Article 91: Contempt or disrespect toward a petty officer, violation of UCMJ, Article 92: Dereliction in the performance of duty.
	Award:  Vacate punishment suspended from CO’s mast of 930610, restriction to the limits of the ship for 60 days.  No indication of appeal in the record.

930628:	Commenced a period of unauthorized absence this date on or about 1600.
 
930809:	Report of Declaration of Deserter (NAVPERS 1600-3).

931119:	Report of Return of Deserter.  Applicant apprehended by civil authorities on 931115 (1835) in Birmingham, AL.  Returned to military control 931115 (1950).  Retained onboard NAB/Others Little Creek pending return to home USS SHREVEPORT.

931209:	Commenced a period of unauthorized absence on or about 0715, 931209.
 
940101:	Apprehended by civil authorities at Norfolk, VA at 0320, 940101.

940520:	Turned over to military authorities at 2030, 940520.

940815:	Applicant discharged under other than honorable conditions in lieu of a trial by court-martial per MILPERSMAN 3630650.  

Complete discharge package unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940815 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 case, 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).

Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident during the Applicant’s enlistment.  Relief not warranted.

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 two occasions for violations of Articles 91, 92 and 117 of the UCMJ and adverse counseling entries on other occasions.  Additionally, the Applicant was apprehended twice by civil authorities for unauthorized absences.  The Applicant requested discharge for the good of the service to escape trial by court-martial.  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.

Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

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.  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 9, effective 
22 Jul 94 until 2 Oct 96, 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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, 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 “http://Boards.law.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:

		Secretary of the Navy Council of Review 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.