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

 ex-DKSA, USN
Docket No. ND02-00330

Applicant’s Request

The application for discharge review, received 020129, requested that the characterization of service on the discharge be changed to 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 021029.  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 3630650.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  I'm writing for a request in regards to a discharge upgrade.  I'm asking for a discharge upgrade because I feel I'm entitled to it.  I realize the choices we make sometimes cause us a great deal, but I do believe I served my country well and considering the actions I took during the particular circumstances still represented the Navy well.  I also believe the Navy is branch that has been established by superior service by their seamen and the ability to learn from your mistakes.  I also realize that somethings would look to be way out of order from a paper stand point.  But I assure you my only desire after my incident was to reenlist in the Navy for a second enlistment.  The Navy taught me discipline and the heart to achieve all goals considered unreachable.  Well fighting for my discharge upgraded is one of those goals I long to fight for with a sincere heart.  Sir, I made a mistake only out of fear and not being able to work in my rate and reenlist in the Navy.  When you desire to achieve so much out of life through a branch of government known for its 2nd chances its important.  I've seen the Navy as a organization fight for a 2nd chance after tailhook and I've seen the Navy make men achieve their dreams that encouraged others to be Navy men in Men of Honor.  So I hope/pray my 2nd chance will be awarded.  I just want my educational benefits.  I have met the requirements stated in the education G.I. Bill booklet.  Thank you.

Documentation

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

None

A discharge package was not available.

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	890321 - 890522	COG

Period of Service Under Review:

Date of Enlistment:  890523		Date of Discharge:  950901

Length of Service (years, months, days):

	Active:    03  08  018
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  44

Highest Rate:  DKSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.93 (6)	Behavior:  2.91 (7)		OTA:  3.90

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR(w1b*), NAVY"E"RIBBON

Days of Unauthorized Absence:  934

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 formerly 3630650.

Chronological Listing of Significant Service Events:

921223:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 921209 having been an unauthorized absentee since 0001, 921109 from USS NASSAU.

930301:	Report of Return of Deserter.  Applicant apprehended by civil authorities on 930220 (1900) at Meridian, MS.  Returned to military control 930226 (1710) at Deserter point PERS-842, Washington, DC.  Orig will retain custody of SNM pending transfer to USS NASSAU at Norfolk, VA FORDU.

930601:	Special Court Martial 
	Charge I:  violation of the UCMJ, Article 86: Unauthorized absence 921109 – 930226, [109 days/A].
	Findings:  to Charge I and the specifications thereunder, guilty.
	Sentence:  CHL for 90 days (suspend 60 days), forfeiture of $300.00 per month for 3 months, reduction to E-2.
	CA 930501:  Sentence approved and ordered executed.

940411:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 930519 having been an unauthorized absentee since 0630, 930419 from USS NASSAU.

950726:	Report of Return of Deserter.  Applicant apprehended by civil authorities on 950723 (1426) at ROSCO, TX.  Returned to military control 950723(1630).  Transferred TEMDU to TPU GLAKES IL 1345, 950725.

950808:	Sentence of 30 days confinement suspended at SPCM of 930401 vacated due to continued misconduct.
  
950901:	Released from confinement and restored to full duty.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 950901 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 Board disagrees with the Applicant's contention that he served the United States well and he is entitled to an upgrade.  When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  Under other than honorable conditions is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by two very long-term unauthorized absences totaling 934 days.  Both were ended by apprehension.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant is requesting an upgrade to his discharge so he can receive benefits from the Veterans Administration (VA).  The VA determines eligibility for post-service benefits not the Navy Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

The following is provided for the benefit of the Applicant.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  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.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Relief denied.

The Applicant is reminded that the period of eligibility for a personal appearance hearing is 15 years from the date of discharge.  The application package must be submitted to the NDRB prior to the expiration of the 15 year period.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  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 9, effective 
22 Jul 94 until 2 Oct 96, 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 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