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

 ex-FN, USN
Docket No. ND02-00742

Applicant’s Request

The application for discharge review, received 020502, 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 030206.  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.  This discharge was improper because my ship knew where I was at.  I was in jail for 3 months because a charge that was dismissed.  I could not make the bail due to the large amount that he bondsman wanted because I am not from that state.  I lost my career because a lack of funds to get out of jail and then the charges were dismissed.

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	930427 - 930506	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  930507		Date of Discharge:  970420

Length of Service (years, months, days):

	Active:    03  11  14
	Inactive:  None

Age at Entry:  19			Years Contracted:  2 (24 months extension)

Education Level:  12			AFQT:  53

Highest Rate:  FN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.80 (2)	Behavior:  4.00 (2)		OTA:  3.80

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, AFEM, AFSM, NAM, SASMwb*, NM

Days of Unauthorized Absence:  134 

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 3630650.

Chronological Listing of Significant Service Events:

950324:	NJP for violation of UCMJ, Article 86: UA from 950228 to 950302 (2 days), violation of UCMJ Article 92: Fail to wear a proper uniform on 950324.
	Award:  Forfeiture of $427.00 pay per month for 1 month, restriction and extra duty for 30 days, reduction to E-1 (suspended for 6 months).  No indication of appeal in the record.

950608:	RIR to E-1 suspended for 6 months refitted this date.

961125:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 961125 having been an unauthorized absentee since 0730, 961018 from TPU NORVA.

970311:	UA from NORVA since 0730, 961018.  Surrendered onboard TPU NORVA 1650, 970227 (132 days).  No civil charges pending.  Restored to full duty status at 1650, 970227.  Retained onboard TPU NORVA for disciplinary action and disposition.
 
970421:	Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  He consulted with counsel and was fully advised of the implications of his request.  The Applicant stated he understood the elements of the offense(s) with which he was charged, and admitted he was guilty of all the charges preferred against him.  Specifically, he admitted to violating UCMJ, Article: 86.  The Applicant stated he was completely satisfied with the counsel he had received. The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he 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.

 970422:	The Commanding Officer, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 970420 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 contends his discharge was inappropriate because the Command knew he was in jail for the three-month period he was in an unauthorized absence status.  He also contends the charges which were pending against him were dismissed by the civilian authorities.  The Applicant's service record documents a period of unauthorized absence commenced on 961018 and ended on 970227.  The fact the command knew he was in prison at the time he was in an unauthorized absence status is not relevant.  The Applicant consulted with an attorney prior to his discharge.  He was fully advised of the implications of his request to be discharged with an other than honorable characterization of service in lieu of trial by court martial.  He admitted guilt to all of the charges.  His discharge was both proper and equitable.  

The following is provided for the benefit of the Applicant.  Normally, to permit relief, the discharge or characterization of the Applicant's service had to be improper or inequitable.  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.  

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 14, effective 
03 Oct 96 until 11 Dec 97, 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