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NAVY | DRB | 1999_Navy | ND99-00982
Original file (ND99-00982.rtf) Auto-classification: Denied


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

ex-AR, USNR
Docket No. ND99-00982

Applicant’s Request
The application for discharge review, received 990713, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested 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 000411. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Separation in lieu of trial by court martial, authority: NAVMILPERSMAN, Article 3630650.




PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 Prior to the documentary discharge review, the applicant introduced no issues as block 8 on the DD Form 293 is blank.

 Documentation
Only the service and health records were considered, as the applicant did not provide additional documentation.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: None

 Period of Service Under Review :
Date of Enlistment: 900626               Date of Discharge: 921228

 Length of Service (years, months, days):

         Active: 01 06 04 (Doesn't exclude time lost.)
         Inactive: 01 00 01

 Age at Entry: 17                          Years Contracted: 8

 Education Level: 12                        AFQT: 43

 Highest Rate: AR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.2 (2)     Behavior: 3.0 (2)                 OTA: 2.80

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 141

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: NAVMILPERSMAN, Article 3630650.

 Chronological Listing of Significant Service Events :

910625:  Commenced active duty for 36 months under the Active Mariner Program.
920227:  NJP for violation of UCMJ, Article 86 (2 Specs): Spec 1 - unauthorized absence from 0530, 07FEB92 to 1000, 10FEB92; Spec 2 - unauthorized absence from 1300, 21FEB92 to 0700, 24FEB92.
         Award: 30 days correctional custody. Sentence deferred until 5 March 1992. No indication of appeal in the record.
920304:  Retention Warning: Advised of deficiency (Commanding Officer's non-judicial punishment on 27 Feb 92 for violation of UCMJ, Article 82 - Spec 1 unauthorized absence from 0530, 7 Feb 92 to 1000, 10 Feb 92; Spec 2 - unauthorized absence from 1300, 21 Feb 92 to 0700, 24 Feb 92.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920703:  Unauthorized absence from USS PELELIU, Long Beach, since 0730 this date. Intentions unknown.

920807:  Report of Declaration of Deserter: Applicant declared a deserter on 07AUG92.

921118:  Apprehended by the Los Angeles Police Dept at 1300, 18NOV92, returned to USS PELELIU at 1300, 18NOV92 (135 days), retained onboard pending disciplinary action.

921118:  Placed in pre-trial confinement.

921119:  Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86: On or about 3 JUL 92, without authority, absent himself from his unit, to wit: USS PELELIU, located at Naval Station, Long Beach, CA, and did remain so absent until apprehended on or about 18 NOV 92.

921214:  A pplicant requested an administrative discharge under other than honorable conditions in lieu of a trail by court-martial. He consulted with counsel and was fully advised of the implications of her/his request. The applicant stated he understood the elements of the offense 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: unauthorized absence. 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.

921224:  Medical Examination: Applicant evaluated by medical officer and found to be of normal mental status – no documented mental health/psychiatric illness in the past. Psychiatric evaluation not required. Applicant understands the charges preferred against him and is capable in assisting in the preparation of his defense. Applicant is fit for duty and should be held responsible for his actions.

921224:  Commanding Officer, USS PELELIU, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed applicant’s discharge with an other than honorable conditions. Applicant discharged on 28 Dec 92.

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 921228 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).

The applicant introduced no decisional issues for consideration by the Board.

The following is provided for the applicant’s edification. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E). The applicant must be aware that 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 the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB. The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is highly recommended. Relief denied.

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 COURTMARTIAL.

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 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809

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:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  Washington Navy Yard
                  720 Kennon St SE Rm 309
                  Washington, D.C. 20374-5023     


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