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

ex-FN, USN
Docket No. ND02-00324

Applicant’s Request

The application for discharge review, received 020128, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions.  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 020829.  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/IN LIEU OF TRIAL BY COURT-MARTIAL, authority: NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  Respectfully request an upgrade on my discharge.  The type of discharge received was based on one isolated incident that does not reflect my character.  I had served honorably from July of 1993 to January of 1998, receiving in that time the Good Conduct Medal, awarded on 11 July 1996, two letters of Appreciation while serving on the U.S.S. Samuel Gompers, and one letter of Appreciation while serving at Port Operations Subase Bangor.  I received above average evals and had no disciplinary marks on my record.  Since my discharge I have worked to achieve personal education goals made possible by the self respect and personal discipline taught to me during my active duty years.  I have maintained a G.P.A. of 3.25 and Honor Roll statis since my enrollment in the Fall of 2000.  I have worked to make myself a respected member of society.  Thank you.

Documentation

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

Transcript from Tulsa Community College (3pgs)
Copy of Dean's Honor Roll Certificate
Copy of President's Honor Certificate 

PART II - SUMMARY OF SERVICE

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

	Active:   USN			930925 - 970910	HON
	Inactive: USNR (DEP)	930519 - 930924	COG

Period of Service Under Review:

Date of Enlistment:  970911		Date of Discharge:  980415

Length of Service (years, months, days):

	Active:    00  07  04
	Inactive:  None

Age at Entry:  24			Years Contracted:  3 

Education Level:  12			AFQT:  45

Highest Rate:  FN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM, SSDR, NAVY"E"RIBBON (2), MUC, GCA, Navy Pistol Marksmanship Ribbon (Sharpshooter)

Days of Unauthorized Absence:  70 

*No Marks Found in the service record.

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT-MARTIAL, authority:  NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

Chronological Listing of Significant Service Events:

970911:	Reenlisted at Silverdale, WA for 3 years.
 
971202:	Applicant notified of intended recommendation for discharge by reason of homosexuality as evidenced by applicant's statement admitting to being a homosexual.  Applicant advised, that if separation is approved, the characterization of service may be under other than honorable conditions.

971202:	Applicant advised of her 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.

971205:	Commanding Officer recommended applicant be separated from the naval service with a honorable discharge by reason of homosexuality as evidenced by applicant's statement admitting her homosexuality. 

980105:	BUPERS directed the applicant's discharge with characterization as type warranted by service record by reason of homosexual conduct admission.

980324:	Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ), Article 86: Did on or about 5 January 1998, without authority, absent herself from her unit, to wit: Transient Personnel Unit Great Lakes, Great Lakes, Illinois, and did remain so absent until on or about 17 March 1998.

980326:	Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  She consulted with counsel and was fully advised of the implications of her request.  The applicant stated she understood the elements of the offense with which she was charged, and admitted she was guilty of the charge preferred against her.  Specifically, she admitted to violating UCMJ, Article 86: unauthorized absence from her unit from 5 January 1998 to 17 March 1998.  The applicant stated she was completely satisfied with the counsel she had received. The applicant understood that if discharged under other than honorable conditions, it might deprive her of virtually all veterans' benefits based upon her current enlistment, and that she 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.  

980330:	The Commanding Officer, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed the applicant’s discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 980415 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).

Issue 1.  The Board found that the applicant’s service prior to her desertion does not mitigate her misconduct sufficient to warrant an upgrade to her discharge.  The applicant’s discharge characterization accurately reflects her service to her country.  The discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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.  Relief not warranted.

The applicant is reminded that she remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of her discharge.  Representation at a personal appearance hearing is recommended but not required.  

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 
12 Dec 1997 until 10 July 2000, Article 1910-106 (formerly 3630650), 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 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 “afls10.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