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

FOR OFFICIAL USE ONLY

 ex-SN, USN
Docket No. ND06-00362

Applicant’s Request

The application for discharge review was received on 20060103.  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 20061103.  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:

“Proving to be honorable in the civilian sector.  Since discharge no further trouble working at Children’s Hospital.”

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)	19971217 - 19980504	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19980505		Date of Discharge:  20030529

Length of Service (years, months, days):

	Active:    05  00  24  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  392 days
	Confinement:		  8 days

Age at Entry:  19

Years Contracted:  4 

Education Level:  12				AFQT:  32

Highest Rate:  YNSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.3 (3) 		Behavior:  1.7 (3) 		OTA:  2.05 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Sea Service Deployment Ribbon (3)

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: 

990904:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 1945, 990819 until 2345, 990819.
		Award:  30 days restriction.  No indication of appeal in the record.

990909:	Retention Warning:  Advised of deficiency (Unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

000228:	Applicant to unauthorized absence from USS CONSTELLATON at 0700 on 000228 intentions unknown.

000328:	Applicant from unauthorized absence at 2315 on 000328 (29 days/surrendered).

000503:	Summary Court-Martial.
	Charge:  violation of the UCMJ, Article 86: Unauthorized absence.
	Specification: UA from unit from 000228 until 000328. 
	Finding: Not found in record.
	Sentence: Forfeiture of $774.00 pay per month for 1 month, reduced to E-2, confinement for 30 days.
	CA action 000508:  Only so much of the sentence extending to 30 days confinement is changed to 60 days restriction.  The sentence as changed is approved and will be executed.
	
000508:	Applicant released from confinement and returned to full duty status.

010413:	NJP for Charge I: Violation of UCMJ, Article 86 (7 specs): Failed to go at the time prescribed to liberty risk muster on hangar bay two at 2130, 010405; 0700, 010406; 2130, 010406; 0700, 010407; 2130, 010407, 0800, 010408; 2130, 010408.
	Specification 8: UA from unit from 0700, 010409 – 0115, 010410.
	Charge II: Violation of UCMJ, Article 92: Violate a lawful general regulation on divers occasions between 010324 and 010404 by wrongfully possessing more than one validated Armed Forces Identification cards.
	Award:  Forfeiture of $585.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

010430:	NJP for Charge I: Violation of UCMJ, Article 86: UA from restricted men’s berthing from 0130-0630, 010425.
	Charge II: Violation of UCMJ, Article 91: Disrespect in language and deportment towards MA3 A_, a superior petty officer in the execution of his office, by mocking him in front of other restricted personnel while he was giving out cleaning assignments and when told to be quiet, the said SA L_ (Applicant) approached MA2 A_ with his fists clinched at his side and said, “This is disrespect”, or words to that effect.
	Award:  Confinement and 3 days bread and water.  No indication of appeal in the record.

020412:	Applicant to unauthorized absence at 1230 on 020412 intentions unknown.

030409:	Applicant from unauthorized absence at 1810 on 030409 (362 days/apprehended by the San Diego, CA, Sheriff’s Department at 1400, 030409.  Returned to military control at 1810, 030409.  Retained onboard for further disposition).

030428:	Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86:  In that Seaman D_ R. L_ (Applicant), U.S. Navy, Navy Region Southwest Transient Personnel Unit, San Diego, California, on active duty, did, on or about 020412, without authority, absent himself from his unit, to wit: USS CONSTELLATION, located at Naval Air Station, North Island, California, and did remain so absent until he was apprehended on or about 030409.

030429:	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) 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.  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.

030512:	Commanding Officer, Navy Region Southwest Transient, approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge Under Other Than Honorable Conditions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030529 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). 

The Applicant desires an upgrade to General (Under Honorable Conditions).  When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  Characterization of service as under other than honorable conditions 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.  There is irrefutable evidence that the Applicant’s conduct during his time in the Navy was not honorable.  Indeed, the Applicant’s records contain:
•	Non-judicial punishment proceedings on 19990904 for violation of UCMJ Article 86 Unauthorized absence;
•	Retention warning entry on 19990909 for deficiencies in performance and conduct concerning unauthorized absence;
•	Summary Court-Martial proceedings on 20000503 for violation of 8 specifications of UCMJ Article 86 Unauthorized absence;
•	Non-judicial punishment proceedings on 20010413 for violation of UCMJ Article 86 Unauthorized absence and Article 92 Failure to obey regulation;
•	Non-judicial punishment proceedings on 20010430 for violation of UCMJ Article 86 Unauthorized absence and Article 91 Disrespect in language and deportment; and
•	Charges preferred to special court-martial on 20030428 for violation of UCMJ Article 86 Unauthorized absence for 362 days.
The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls well below that required for a general characterization of service.  An upgrade would be inappropriate; therefore relief is denied.

The Applicant informs the Board that he is “proving to be honorable in the civilian sector,” has had “no further trouble” since discharge, and is “working at Children’s Hospital.”  While 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 service, the Board 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.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, verifiable employment records, documented community service, and certification of non-involvement with civil authorities are examples of documentation that should have been provided to receive consideration for relief based on post-service conduct.  At this time, the Board found that the Applicant’s statements concerning post-service conduct, without documented evidence, do not mitigate the misconduct, which precipitated discharge.  No relief is granted on this basis.

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 post-service accomplishments or any other evidence related to the 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 upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-Martial, for violation of UCMJ Article 86 Unauthorized absence for a period more than 30 days and Article 92 Failure to obey regulation.

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