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

 ex-SN, USNR
Docket No. ND99-00688

Applicant’s Request

The application for discharge review, received 990422, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance before the board in the Washington National Capital Region.  The applicant did not list any representative on the DD Form 293.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 000410.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety but did discern inequity in the characterization of the applicant’s service.  The Board’s vote was three to two that the character of the discharge shall change.  The discharge shall change to: GENERAL(UNDER HONORABLE CONDITIONS)/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

None listed at this time

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Referred to documents from previous review
Copy of DD Form 214
Letter of Congratulation from Prudential dated March 17, 2000
College transcript
Letter from employer, The Prudential dated March 4, 1996
Copy of citation for Business Insurance dated July 1, 1993
Copy of Certificate of Qualification dated February 21, 1996 from Commonwealth of Pennsylvania
Copy of sister's degree in Bachelor of Arts dated May 11, 1996
Thank you note to applicant
Letter from Pension Marketing Specialist dated September 7, 1994
Copy of card for certificate of registration dated December 29, 1994
Copy of card for Advanced Scuba Diver dated July 1994
Copy of card for private pilot dated October 20, 1997
Copy of death certificate for applicant's mother filed June 17, 1991
Copy of death certificate for applicant's father filed September 5, 1991
Twenty-seven pages from applicant's service record, previously available to the Board
Copy of certificate for designation of Chartered Mutual Fund Counselor dated October 1999

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:  860726		Date of Discharge:  900320

Length of Service (years, months, days):

	Active:    03  07  20
	Inactive:  00  00  05

Age at Entry:  18			Years Contracted:  8

Education Level:  12			AFQT:  85

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.33 (3)	Behavior:  3.33 (3)		OTA:  3.33

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  108

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

860801:	Applicant ordered to active duty for 36 months under the Active Mariner Program.

871207:	Applicant to unauthorized absence 0715, 7Dec87.

871211:	Applicant from unauthorized absence 1630, 11Dec87 (4 days/surrendered).

880107:	Applicant to unauthorized absence 0715, 7Jan88.

880206:	Applicant from unauthorized absence 0330, 6Feb88 (29 days/surrendered).

880209:	NJP for violation of UCMJ, Article 86: Absence from unit.
	Award:  Forfeiture of $376 per month for 2 months, restriction and extra duty for 30 days, reduction to SA.  Restriction and extra duty suspended for 6 months.  No indication of appeal in the record.

890421:	NJP for violation of UCMJ, Article 134: Unauthorized pass on 17Feb89.
	Award:  Restriction and extra duty for 14 days.  No indication of appeal in the record.

890706:	Applicant declared a deserter.

890715:	Applicant missed ship's movement.

891115:	Special Court-Martial.
	Charge I: violation of the UCMJ, Article 86:
	Specification: Unauthorized absence from 0805, 4Jun89 to 1830, 18Aug89 (75 days/surrendered).
	Findings:  to Charge I and specification  thereunder, guilty.  
	Sentence:  Fine of $200.00 for 6 months, confinement for 60 days.
	CA 891215: Sentence approved and ordered executed.
	
900103:	Applicant released from confinement.

900105:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by your special court-martial of 15 November 1989.

900108:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

900131:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions, recommended separation be suspended for 1 year.

900213:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  Commanding officer’s comments: This command concurs with the findings and recommendations of the Board, except that the discharge should not be suspended. It is the opinion of this command that (applicant) is no longer considered suitable for continued naval service.  Due to his violations of the Uniform Code of Military Justice.  I recommend that he be discharged from the naval service under Other than Honorable Conditions.

900301:	Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

900309:	CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

981221:	NDRB documentary record review Docket Number ND98-00449 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 900320 under other than honorable conditions for misconduct due to commission of a serious offense (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 even though the discharge was proper and equitable at the time of issuance, it is not currently considered equitable (D and E).

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

The Board, after reviewing the applicant’s post-service conduct, grants clemency relief as authorized under provisions of SECNAVINST 5420.174C, enclosure (1), paragraph 9.3.  The Board determined that while the applicant’s post-service record warrants an upgrade to general, the applicant’s overall record of service does not warrant an honorable discharge.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A), Change 8, effective 
21 Aug 89 until 14 Aug 91, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 86, for unauthorized absence for a period in excess of 30 days, if adjudged at a Special or General Court-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 Street SE Rm 309
		Washington, D.C.  20374-5023