Author: CAP
Last saved by: joyce.meeks
Company: NCPB

Docket No. ND05-00945

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

FOR OFFICIAL USE ONLY

 ex-BMSN, USN
Docket No. ND05-00945

Applicant’s Request

The application for discharge review was received on 20050511.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.
In the acknowledgement letter the Applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, DC area.  The Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051102.  After a thorough review of the 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 a trial by court-martial.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

No issues were submitted by the Applicant.

Documentation

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

Reference ltr from V_ L_, Account Executive, WWWB, dtd March 22, 2005 (unsigned)
Character reference ltr from A. P_ H_, Sr., dtd April 4, 2005
Reference ltr from S_ F_, Queen City Services, dtd April 1, 2005
Character reference ltr from B_ N_, Tiffany & Co., undtd
Reference ltr from L_ M_, dtd March 21, 2005
Applicant’s DD Form 214
Cover letter from Mecklenburg County Veterans Service Officer S_ J_, dtd May 4, 2005 (2)

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   USN	19730621 - 19760622	HON
	               USN	19760623 - 19770814	HON
	               USN	19770815 - 19841115	HON
	               USN	19841116 - 19890608	HON

Period of Service Under Review:

Date of Enlistment:  19890609		Date of Discharge:  19920709

Length of Service (years, months, days):

	Active:    03  01  01
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  42

Years Contracted:  4

Education Level:  12				AFQT:  NA*

Highest Rate:  BM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.7 (4)			Behavior:  3.9 (4)		OTA:  3.7

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Sea Service Deployment Ribbon (3), Armed Forces Expeditionary Medal, Humanitarian Service Medal (2), Navy Expeditionary Medal (Lebanon), Meritorious Unit Commendation (2), Battle “E” Ribbon, National Defense Service Medal (2)

*Not 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:  MILPERSMAN, Article 3630650.

Chronological Listing of Significant Service Events: 

890609:	Reenlisted this date for a term of 4 years.

910513:	Applicant was involved in a motor vehicle accident.  [Extracted from Medical Board Report dated 911031.]

911031:	Medical Board referred Applicant’s case to departmental review recommending a second period of limited duty for 6 months.
Medical Board Report:  “...The member was well until he was involved in a motor vehicle accident on 13 May 1991 in which he fractured his left fourth and fifth ribs and also had a distal third clavicle fracture.  The member has been treated with a sling and non-steroidal medications... Diagnoses: (1) Left rib fractures, and (2) left clavicle fracture.  It is the opinion of the Medical Board that the member is fit for limited duty...  It is anticipated that the member will return to full duty within the prescribed period.”  The Medical Board Report coversheet indicated the Applicant was not pending disciplinary action or involuntary separation.

920709:	Applicant administratively reduced to paygrade E-3 due to separation in lieu of trial by court martial.

920709:	DD Form 214: Applicant discharged under other than honorable conditions by separation in lieu of a trial by court-martial.

Service Record did not contain the Administrative Discharge package. 

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920709 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).

Under the presumption of regularity, 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.  Neither the evidence of record nor the documentation provided by the Applicant demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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.  As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider.  Relief denied.

The following is provided for the edification of the Applicant.  The Applicant was evaluated by a medical board on 19911031.  The board recommended a second limited duty period of six months with the anticipation that the Applicant would return to full duty within the required period.  There is no indication in the record that the Applicant was processed for a Physical Evaluation Board or that the Applicant was a candidate for a disability-based separation.  However, even if the Applicant would have been otherwise eligible for a medical-related separation, DoD disability regulations do not preclude a disciplinary separation.  SECNAVINST 1850.4C stipulates that separations for misconduct take precedence over potential separations for other reasons.  

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), 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.  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, Para 211, Regularity of Government Affairs.  

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