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Docket No. ND05-00472

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

 ex-AR, USN
Docket No. ND05-00472
FOR OFFICIAL USE ONLY

Applicant’s Request

The application for discharge review was received on 20050125.  The Applicant requests characterization of service received at the time of discharge changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not list a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050811.  After a thorough review of all 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/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 1910 - 106 (formerly 3630650).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

No issues were submitted by the Applicant.

Documentation

In addition to the service record, 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)	030430 - 030806
	Active:   None

Period of Service Under Review:

Date of Enlistment:  030807		Date of Discharge:  040227

Length of Service (years, months, days):

	Active:    00 06 21
	Inactive:  None

Age at Entry:  21			Years Contracted:  4 (12 months extension)

Education Level:  12			AFQT:  32

Highest Rate:  AR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*		Behavior:  NA*		OTA:  NA*

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

*Not available.

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority:  MILPERSMAN, Article 1910-106 (formerly 3630650).

Chronological Listing of Significant Service Events:

031120:	Violation of UCMJ Article 89 (disrespect toward superior commissioned officer) (CO letter dated Jan 05, 2004).

031215:	Violation of UCMJ Article 91 (insubordinate conduct toward petty officer) (CO letter dated Jan 05, 2004).

031230:	Violation of UCMJ Article 86 (unauthorized absence, place of duty), 1200 – 1343 (CO letter dated Jan 05,2005).

031231:	Applicant to pre-trial confinement.

040130:	Charges referred to special court martial.  Applicant charged with violations of UCMJ Articles 89 (disrespect toward a superior commissioned officer) and 91 (insubordinate conduct toward a petty officer).

040219:	Applicant after consulting with counsel admits guilt to violation of UCMJ Articles 89 (disrespect toward a superior commissioned officer) and 91 (insubordinate conduct toward a petty officer), citing MILPERSMAN 1910-106 as reference, requests administrative discharge under than honorable conditions in lieu of trial by court-martial.  

040223:	Commander, Recruit Training Command, Great Lakes recommends approval of Applicant’s request for discharge under other than honorable conditions in lieu of trail by court-martial.

040225:	Commander, Naval Service Training Command, Great Lakes directs separation in lieu of trial by court-martial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040227 under other than honorable conditions in lieu of trial by court martial (A and B).  In this case, in the absence of a complete discharge package the Board applied the presumption of regularity of governmental affairs (C).  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 (D and E).

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  After a thorough review of Applicant’s case the Board discovered no impropriety or inequity.  When the service of a member of the U.S. Navy has met the standard of acceptable conduct and performance, it is appropriate to characterize that service as honorable.  An under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  Certain serious offenses warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s service was marred by misconduct resulting in charges referred to special court-martial for violation of UCMJ Article 89 (disrespect toward a superior commissioned officer) and violation of UCMJ Article 91 (insubordinate conduct toward petty officer).  Additionally, the Applicant was placed in pretrial confinement after a period of unauthorized absence on 30 December 2003.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls short of that required for an upgrade of his characterization of service.  Relief is not warranted.

In a signed statement, the 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 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 there from may have a bearing.  The Applicant stated he understood the elements of the offenses with which he was charged.  He admitted he was guilty of violating Articles 89 and 91.  Relief denied.

The Applicant presented no issues.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, or even made unsubstantiated accusations that his discharge was inequitable or improper.  Relief denied.  

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 Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  The Applicant did not submit documentation for the board to consider.  Based on a lack of sufficient post service factors 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 15560C), re-issued October 2002, effective 22 Aug 2002 until Present, Article 1910-106 (formerly 3630650), SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B.  A punitive bad conduct discharge may be adjudged for violations of the Uniform Code of Military Justice, Article 89 (disrespect toward a superior commissioned officer) and Article 91 (insubordinate conduct toward a petty officer) 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 II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

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

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.