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

ex-SA, USN
Docket No. ND00-00879

Applicant’s Request

The application for discharge review, received 000707, 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 010209.  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.  I am attending Westwood College of Aviation in Broomfield, Colorado.  I have not been in trouble with the law or commit any offense since my discharge.  I am a full-time student and I work part-time at the school.  I would like to request an up-grade to help my family and I with financial needs through Montgomery GI Bill that I have invested in.
I would like to explain what happened before my discharge.  My dept. head was the CDO on my duty day, failed to inform me of Bravo 2X boundary that cover my office while I was operating the Portal crane on the dry dock.  I was tired and hungry and the food and clothing for duty is in the office so I was upset that my dept. who was the CDO, didn't have a courtesy to inform me.  I was sent to CCU (Correctional Care Unit).  One day, I needed to go to sick call so the facility request any Master-Arm to escort me to sick call.  But of one of rule at CCU is that you will surrender your I.D. to the staff.  So, the master-at-arm too me back to CCU but they forgot to turn in the I.D. to the staff, I was called to Command Master-Chief office for disobeying a lawful order.  I thought these staff was crazy.  Because you have to surrender your I.D., I didn't have the I.D. in my possession, why are they insisted that I have my military I.D.  I was sent back to the command and more charge was filed by that time I just wanted to get out.  So I played dead and was sent to the Brig.

Documentation

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

Copy of DD Form 214
Copy of vacation hearing dated April 29, 1993
Copy of charges
Copy of referral of charges dated April 29, 1993
Copy of pretrial confinement
Four copies of Enlisted Performance Evaluation Report

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	900818 - 900823	COG

Period of Service Under Review:

Date of Enlistment:  900824		Date of Discharge:  930629

Length of Service (years, months, days):

	Active:    02  10  06
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  53

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.85 (4)	Behavior:  2.80 (4)		OTA:  2.85

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, NER

Days of Unauthorized Absence:  None

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:

930305:	NJP for violation of UCMJ, Article 86: Unauthorized absence, to wit: abandoning watch or guard on 17Feb93.
	Award: Forfeiture of $456.60 per month for 1 month, correctional custody for 30 days, reduction to SA.  Forfeiture and reduction suspended for 6 months. No indication of appeal in the record.

930305:	Retention Warning:  Advised of deficiency (Abandoning watch or guard and absence without leave), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

930324:	Commanding officer mitigated the remaining 13 days of correctional custody to 13 days restriction and 13 days extra duty and vacated 1/2 pay per month for 1 month and reduction to next inferior pay grade (SA).

930429:	Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 92 (5 specs): (1) Fail to obey lawful order on 23Mar93, to wit: standing in a relaxed position, (2) Fail to obey lawful order on 23Mar93, to wit: retaining his Identification Card, (3) Fail to obey lawful order on 23Mar93 to assume the parade rest position outside of her office, to wit: wrongfully wandering through the building at will, (4) Fail to obey lawful order on 23Mar93, to wit: refusing to get the motivation box, (5) Fail to obey lawful order on 24Mar93, to wit: refusing to perform his Extra Duties.
	
930618:	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 her/his defense.  Applicant is fit for duty and should be held responsible for her/his actions.

930629:	Applicant discharged with an under other than honorable conditions discharge in lieu of trial by court-martial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 930629 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 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 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 failed to provide any post service documentation to support his request for upgrade.  Relief is not warranted.

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.

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