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

FOR OFFICIAL USE ONLY

 ex-RP3, USN
Docket No. ND05-00649

Applicant’s Request

The application for discharge review was received on 20050304.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050915.  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 and reason for discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions in lieu of a trial by court-martial.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the attached document/letter:

“The undersigned Affiant, having duly sworn, deposes and states as follows:

1. That the Affiant is RP3 R_ D_ M_ (Applicant), USN.

2.  That he is making this Affidavit for the purpose of furnishing a sworn statement to accompany the documents requesting an Other Than Honorable Discharge from the United States Navy, in lieu of court-martial.

3.  That this Affidavit is made freely and voluntarily, and the contents hereof are true.

4.  That Affiant is requesting discharge in lieu of court-martial because he feels that it is in his own best interest to do so, in light of the evidence intended to be used against him, the risk involved in any trial, and the consequences in the event that he had lost at trial.

5.  Nevertheless, Affiant requests that consideration be given to granting him a General Discharge instead of an Other Than Honorable Discharge, especially in view of his desire to become a law enforcement officer in the future, and in view of his earlier service record, which he submits is more reflective of his career with the Navy than the present circumstances.

FURTHER AFFIANT SAYETH NAUGHT.
[signed]
R_ D_ M_ (Applicant)

Sworn to and subscribed this 6th Day of December 1995.”

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214
Receipt for donuts from Dunkin Donuts, dated October 29, 1995
Service Record Documents (13 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19880229 - 19880724		COG
	Active:   USN 			19880725 - 19940327		HON

Period of Service Under Review:

Date of Enlistment:  19940328		Date of Discharge:  19960212

Length of Service (years, months, days):

	Active:    01  10  15
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  23

Years Contracted:  2

Education Level:  12				AFQT:  26

Highest Rate:  RP3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.8 (2)			Behavior:  3.8 (2)	OTA:  3.9

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Armed Forces Expeditionary Medal,; M-16 Rifle Marksmanship Ribbon, Sea Service Deployment Ribbon; National Defense Service Medal; Navy & Marine Corps Overseas Medal; Artic Service Ribbon; Navy Achievement Medal; Navy Good Conduct Medal for period ending 92JUL24.

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 3630650.

Chronological Listing of Significant Service Events: 

940328:	Reenlisted this date for a term of 2 years.

960212:	DD Form 214:  Applicant discharged under other than honorable conditions in lieu of a trial by court-martial, authority: MILPERSMAN, Article 3630650.

Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960212 in lieu of a trial by court-martial (A) with a service characterization of under other than honorable conditions.  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 (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

In the absence of a complete discharge package, the NDRB presumed that the Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  The Board further presumed that he consulted with counsel, was fully advised of the implications of his request, and that 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.  Likewise, the Board presumed the Applicant was aware 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, that  he understood the elements of the offenses with which he was charged and admitted he was guilty of violating UCMJ Article 121:  Larceny.  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.

In a signed affidavit dated 19951206, the Applicant claims his innocence and indicates he requested separation in lieu of trial by court-martial due to the risks inherent in trial by court-martial.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of establishing his issues through the presentation of substantial and credible evidence.  There is no evidence in the record, nor has the Applicant produced any evidence, to support his claim of innocence.  Additionally, the NDRB considered the Applicant’s request for separation tantamount to an admission of guilt for the alleged misconduct.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  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.  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.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

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

D.  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