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

 ex-RMSN, USN
Docket No. ND00-00382

Applicant’s Request

The application for discharge review, received 000203, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed the American Legion as his representative on the DD Form 293.
 
Decision

A documentary discharge review was conducted in Washington, D.C. on 000831.  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

1.  (Equity Issue) This former member opines that his refusal to participate in a conspiracy by his command to cover-up illegalities that occurred during Desert Storm forced him to go UA.  On this basis, he petitions to Board's relief.

2.  (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

Documentation

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

Copy of DD Form 214 (2 copies)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	881203 - 881213	COG

Period of Service Under Review:

Date of Enlistment:  881214		Date of Discharge:  920317

Length of Service (years, months, days):

	Active:    03  03  04
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  27

Highest Rate:  RM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.30 (2)	Behavior:  3.43 (3)		OTA:  3.40

Military Decorations:  None

Unit/Campaign/Service Awards:  SASM with Bronze Star, NDSM, SSDR, NUC

Days of Unauthorized Absence:  76

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:

900420:	NJP for violation of UCMJ, Article 86: Failing to go to place of duty.
	Award:  Forfeiture of $100 per month for 2 months, restriction and extra duty for 20 days.  No indication of appeal in the record.

900420:	Retention Warning: Advised of deficiency (Failing to go to place of duty.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910812:	Applicant to unauthorized absence 0730, 12Aug91.

910828:	Applicant from unauthorized absence 1300, 28Aug91.

910913:	Applicant to unauthorized absence since 0745, 13Sep91.

911013:	Applicant declared a deserter.

911104:	Applicant apprehended by civilian authorities at Auburn, ME, 2241, 4Nov91.  Returned to military control 2303, 4Nov91.

911106:	Applicant found fit for confinement.

920317:	DD Form 214: Applicant discharged under other than honorable conditions in lieu of a trial by court-martial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 920317 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’s first issue states:  “(Equity Issue) This former member opines that his refusal to participate in a conspiracy by his command to cover-up illegalities that occurred during Desert Storm forced him to go UA.  On this basis, he petitions to Board's relief.”  The applicant provided no documentary evidence for the Board’s consideration in support of this issue.  Relief is not warranted.

The applicant’s second issue states:  “(Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.”  The following is provided for the applicant’s edification.  The NDRB is authorized to consider post-service factors in the re characterization of a discharge.  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 provided no documentation for the Board’s consideration to support this issue.  Relief is not warranted.

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.  A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article [e.g., 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 view DoD Directive 1332.28 and other Decisional Documents by going online at “afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023