Author: CAP
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Docket No. ND06-00089

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

FOR OFFICIAL USE ONLY

 ex-SN, USN
Docket No. ND06-00089

Applicant’s Request

The application for discharge review was received on 20051020.  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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060808.  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 a trial by court-martial.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“Its been long enough time being discharged under other than honorable conditions.”

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)	19880412 – 19881025		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19881026		Date of Discharge:  19931019

Length of Service (years, months, days):

	Active:    04  00  18  (excludes lost time)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  337 days
	Confinement:		  none

Age at Entry:  18 

Years Contracted:  4 

Education Level:  12				AFQT:  34

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.4 (3) 		Behavior:  3.8 (3) 		OTA:  3.47 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Battle ”E” Ribbon, Sea Service Deployment Ribbon, National Defense Service Medal, Southwest Asia Service Medal.

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: 

891227:	Applicant to unauthorized absence at 0700 on 891227.

900105:	Applicant declared a deserter.

900111:	Applicant from unauthorized absence at 1550 on 900111.

900118:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
Award:  Restriction and extra duty for 30 days, reduction to E-1 (suspended for 6 months).  No indication of appeal in the record.

910715:	Applicant to unauthorized absence at 0700 on 910715.
Applicant missed sailing of USS HALSEY (CG 23) from San Diego, California.

910716:	Applicant from unauthorized absence at 1100 on 910716.

911107:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful order or regulation.
Award:  Forfeiture of $100.00 pay per month for 2 months, restriction and extra duty for 25 days.  No indication of appeal in the record.

911109:	Retention Warning:  Advised of deficiency (Article 92, failure to obey lawful order), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920131:	Recommendation for advancement to BM3 withdrawn due to total disregard for authority and Navy Regulations.

920827:	NJP for violation of UCMJ, Article 86: (2 specs), Unauthorized absence.
Award:  Forfeiture of $75.00 pay per month for 2 months, restriction and extra duty for 15 days to limits of USS HALSEY, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

920827:	Retention Warning:  Advised of deficiency (Article 86, unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920923:	Applicant to unauthorized absence at 0725 on 920923.  
Applicant missed sailing of USS HALSEY (CG 23) from San Diego, California.  Applicant declared a deserter.
 
930810:	Applicant surrendered on board TPU Naval Station San Diego, CA at 1145, 930810.  

930902:	Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86:  Unauthorized absence from 920923 to 930810.

930902:	Charges referred to special court-martial.

931001:	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 offense(s)s with which he was charged, and admitted he was guilty of the charge preferred against him.  Specifically, he admitted to violating UCMJ, Article 86, unauthorized absence from on or about 920923 until on or about 930810.  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.

931007:	Commanding Officer, Transient Personnel Unit, San Diego, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s under other than honorable conditions discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19931019 in lieu of a trial by court-martial (A and B) with a service characterization of under other than honorable conditions.  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 (C and D). 

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.  The Applicant’s service was marred by two retention warnings and three nonjudicial punishment proceedings for violations of Articles 86 and 92 of the UCMJ.  The Applicant was also declared a deserter on two occasions and missed movement on two occasions.  Missing movement is a violation of Article 87 of the UCMJ, and the commission of a serious offense.  The Applicant’s last period of unauthorized absence, which was never adjudicated, was 321 days in duration and is also the commission of a serious offense.  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 far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant implies his discharge is inequitable because “it’s been long enough.”  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 any post-service documentation for the Board to consider.  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 5, effective 
05 Mar 93 until 21 Jul 94, 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, Article 87, missing movement or Article 92, failure to obey order/regulation, 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.

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