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

 ex-DCFR, USN
Docket No. ND00-00442 

Applicant’s Request

The application for discharge review, received 000215, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000918.  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/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

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

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

Letter from applicant
Multiple Purpose Correspondence Form

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	890721 - 890808	COG

Period of Service Under Review:

Date of Enlistment:  890809		Date of Discharge:  910329

Length of Service (years, months, days):

	Active:    02  02  13
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  62

Highest Rate:  DCFA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NOB		Behavior:  NOB		OTA:  NOB

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM 

Days of Unauthorized Absence:  107 

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:

900328:	NJP for violation of UCMJ, Article 86: (3 Specifications), Spec : Absent from USS FAIRFAX COUNTY from 0715, 900313, until 0711, 900317 [3days/S], Spec 2: Absent from USS FAIRFAX COUNTY from 1800, 900318, until 0152, 900319; Spec 3: UA from USS FAIRFAX COUNTY from 0715, 900323 until 0745, 900323.
	Award:  Restriction to USS FAIRFAX COUNTY and extra duty for 30 days.  No indication of appeal in the record.

900622:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 900622 having been an unauthorized absentee since 0530, 900522 from USS FAIRFAX COUNTY.

900712:	Unauthorized absence from USS FAIRFAX (LST-1193) 0715-1500, 900712, surrendered onboard USS FAIRFAX (LST 1193), transferred to Naval Brig, Norfolk, VA, for pre-trial confinement as directed by confinement order dated 900712.  Pre-trial confinement necessary - to ensure the presence of the accused at the trial (flight risk).

900717:	Report of Return of Deserter.  Applicant surrendered to military authorities on 1113, 900705 onboard USS FAIRFAX COUNTY at Little Creek, VA.  Returned to military control 1113, 900705.  Retained onboard initially for disciplinary action but not considered flight since SNM surrendered.

900802:	Special Court Martial
Charge I: violation of the UCMJ, Article 86: Absent from unit 900524 until 900705 [42days/S]; Absent from unit 0715 900712 until 1500 900712.  Charge II: violation of the UCMJ, Article 87: Missing Ship's Movement on 900606.  Charge III: violation of the UCMJ, Article 112a: Wrongfully use a controlled substance (marijuana/THC) on 900709.
Sentence:  Confinement for 90 days/ forfeiture of $400.00 pay per month for 3 months, reduction to E-1.
CA 900815: Sentence approved and will be executed, but the execution of that part of the sentence extended to confinement or lesser form of restraint in excess of 61 days is suspended for a period of 12 months from 900802, at which time, unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action.
    
900802:	To confinement.

900815:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

900829:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

900830:	Released from confinement and restored to full duty.

901005:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 901005 having been an unauthorized absentee since 0730, 900904 from TPU NORVA.

901106:	Report of Return of Deserter.  Applicant surrendered to military authorities on 1400, 901105 at NAVSTA CHARLESTON SC.  Returned to military control 1400, 901105.  Transferred to TPU CHARLESTON SC pending transportation arrangement by NAVPTO CHARLESTON SC for return to parent command under TAO's.

901115:	NJP for violation of UCMJ, Article 86: Absent without leave from TPU NORVA from 0730, 900904 to 1400, 901105 [62days/S], and UA from TPU NORVA 0715, 901108 to 0930, 901109.
	Award:  Forfeiture of $405.90 per month for 2 months), restriction to NIMITZ HALL and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

910220:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

910319:	CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 910329 under other than honorable conditions for misconduct due to commission of a serious offense (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 following is provided for the applicant’s edification.  The NDRB is authorized to consider post-service factors in the re characterization of a discharge.  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 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.

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

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.  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.  

C.  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.

D.  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