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

 ex-RMSN, USN
Docket No. ND02-00764

Applicant’s Request

The application for discharge review, received 020509, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The Applicant listed Disabled American Veterans as his representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 021104.  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, as submitted

1.  Post-Service Clemency.

Documentation

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

Letter from the Applicant and his wife, undated (4 pages)
California Department of Motor Vehicles Driving Record
Character Reference dated October 23, 2002 (2 pages)
Character Reference dated October 29, 2002 (2 pages)
Character Reference from employer dated October 30, 2002
Copy of TEMADD Travel Orders
Reference Letter from Dept of Veterans’ Service Director W_ H. D_
Reference Letter from President of Anza Valley Chamber of Commerce C_ F_
Character Reference dated March 30, 2002
Copy of DD Form 214 

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	None

Period of Service Under Review:

Date of Enlistment:  830420		Date of Discharge:  881202

Length of Service (years, months, days):

	Active:    02  05  00
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  49

Highest Rate:  RMSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (2)	Behavior:  3.45 (4)		OTA:  3.60

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  1151 

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:

850216	Emergency Leave authorized for 30 days.

850531	Applicant to unauthorized absence.

850708:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 850702 having been an unauthorized absentee since 1700, 850531 from USS MOUNT VERNON (LSD-39).

850821	Applicant onboard NAVSTA Long Beach.  USS MOUNT VERNON (LSD-39).

850822	Applicant to unauthorized absence from USS MOUNT VERNON (LSD-39).  Intentions unknown.

850828:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 850822 having been an unauthorized absentee since 0730, 850822 from USS MOUNT VERNON (LSD-39).

850920	Declared a deserter this date.

861015	Applicant’s records and personnel effects transferred this date.

881018:	Report of Return of Deserter.  Applicant apprehended by civil authorities on 881018 (0420) at Lake Elsinore, CA. Returned to military control 881018 (0500).  Delivered to NAVSTA Long Beach TEMDU for disciplinary action.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 881202 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 Applicant requests post-service clemency.  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.  The Applicant chose to be discharged under other than honorable conditions, after a period of unauthorized absence in excess of 1100 days, vice accepting court martial proceedings.  The Applicant’s conduct, which formed the basis for determining the character of his service, reflected his disobedience of the orders and directives, which regulate good order and discipline in the naval service.  While the NDRB is sympathetic to the circumstances surrounding the Applicant’s decision to absent himself from the Navy, and respects the post-service life choices made by the Applicant, after a complete review of the entire record, including the documentation submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct does not mitigate the seriousness of the offense for which he was discharged.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A), effective 15 Jun 87 until 24 May 89, 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