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Docket No. ND05-00583

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

ex-MMFN, USN
Docket No. ND05-00583

Applicant’s Request

The application for discharge review was received on 20050216.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to “re-enlist code to RE-1”.  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 20050601.  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. Clemency should be warranted because it has been ten years since my discharge and it is an injustice for me to continue to suffer.

2. Under current standards, I would not receive the type of discharge I did.

3.  My behavior and efficiency rating were pretty good.

4.  I received awards, letters of recommendations.

5.  I had a prior honorable discharge.

6.  Personal problems impaired my ability to serve.

7.  I have finished a college course degree.

8.  I have been a good citizen since discharge.

9.  I have a good job as a carman/mechanic for Amtrak.”    

Documentation

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

Applicant’s DD Form 214 for the period of 890802 - 950127
Applicant’s DD Form 214 for the period of 860505 - 890801
Letter of Commendation, undated 
Letter of Appreciation dated March 9, 1993
Transcripts/Grade Report from South Seattle Community College, dated July 2, 2004 (2)
Reference Letter, undated
Employment Reference Letter dated April 16, 2004
Employment Reference Letter dated April 17, 2004
Employment Reference Letter dated March 18, 2004
Employment Reference Letter dated March 12, 2004
Letter from Applicant dated October 11, 2004 (3 pages)
Letter from Applicant’s Wife dated October 11, 2004 (2 pages)
Police Clearance Report dated May 6, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR		860228 - 860504	Rel to ACDU
	Active:   USNR		860505 - 890801	HON

Period of Service Under Review:

Date of Enlistment:  890802		Date of Discharge:  950127

Length of Service (years, months, days):

	Active:    04  10  24 (Excludes lost time)
	Inactive:  None

Age at Entry:  27			Years Contracted:  6

Education Level:  14			AFQT:  44

Highest Rate:  MM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.85 (7)		Behavior:  3.68 (7)		OTA:  3.80

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC, NER (2), GCM, NDSM, HSM, CGSOSM, SSDR (2)

Days of Unauthorized Absence:  214

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:

890802:	Reenlisted in the United States Navy on board USS DULUTH (LPD-6) for 6 years.

901206:	UA from 1921, 900126.

901207:	Surrendered on board USS DULTH (LPD-6) at 1145, 901207 (16hrs/24mins).

940503:	Applicant commenced a period of unauthorized absence this date.

940503:	Applicant missed ship’s movement.

940519:	Applicant missed ship’s movement.

941109:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 940602 having been an unauthorized absentee since 0730, 940503 from USS SAMUEL GOMPERS (AD-37).

941204:	Applicant apprehended by the Seattle Police Department, on or about 2230, 941204.
 
941205:	Applicant returned to military control on or about 0250, 941205.

950106:	Report of Return of Deserter.  Applicant apprehended by civil authority and confined at NAVBRIG, Treasure Island, CA pending DISPLACT/DISPO.
 
950113:	Charges preferred and referred to special court-martial this date.  
Charge I:  violation of the UCMJ Article 86:  
Specification:  Did on or about 940503, without authority, absent himself from his unit, to wit: USS SAMUEL GOMPERS (AD-37), located at Naval Air Station Alameda, California, and did remain so absent until he was apprehended on or about 941204; 
Charge II:  violation of the UCMJ Article 87:  
Specification:  Did on or about 940503, through design miss the movement of the USS SAMUEL GOMPERS (AD-37) with which he was required in the course of duty to move.

950118:	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 offenses 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: Did on or about 940503, without authority, absent himself from his unit, to wit: USS SAMUEL GOMPERS (AD-37), located at Naval Air Station Alameda, California, and did remain so absent until he was apprehended on or about 941204; Article 87: Did on or about 940503, through design miss the movement of the USS SAMUEL GOMPERS (AD-37) with which he was required in the course of duty to move.  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. 

950124:	Commander, Naval Base San Francisco, 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 19950127 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 through 5.  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 therefrom 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 UCMJ Article 86, unauthorized absence in excess of 30 days, and Article 87, missing ships movement by design.  The Applicant contends his prior record of honorable service warrants an upgrade of his discharge.  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.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends it is a injustice for him to continue to suffer from an under other than honorable conditions discharge, in part, because he contends that he would have not received the same discharge under current standards.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  A preponderance of the evidence reviewed supports the conclusion that the Applicant committed several violations of the UMCJ, that he requested separation to escape trial by court-martial, that separation was appropriate, and that an under other than honorable conditions discharge was warranted.  The Board is aware of no change in any law, statute, regulation, order, or instruction that might afford the Applicant relief.  The charges for which the Applicant admitted guilt are considered no less serious today than they were considered at the time of the Applicant’s discharge.  As such, relief is denied.

Issue 6.  The Applicant contends his disciplinary problems were the result of stress caused by his family situation.  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 many members of the Navy experience similar hardships to those the Applicant experienced.  It must further be noted that the vast majority of these Sailors are still able to serve honorably in spite of such hardships and therefore these Sailors 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.  Based upon the Applicant’s admitted misconduct, the NDRB found that the Applicant's service was equitably characterized.  Relief denied.

Issues 7 through 9.  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 could 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 Board received and considered all of the Applicant’s submissions, including his unofficial transcripts, Police clearance report, and  letters of reference and recommendation.  As of this time, the Applicant’s post-service conduct has been insufficient to mitigate his misconduct while in the Naval service.  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), 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 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 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.