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

 ex-GSMFA, USN
Docket No. ND02-00869

Applicant’s Request

The application for discharge review, received 020606, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant listed the American Legion as the representative on the DD Form 293.  In the acknowledgement letter to the Applicant, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030410.  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.  (Equity Issue) This former member avers that advances by a homosexual shipmate contributed to and sufficiently extenuated his misconduct of record to warrant upgrade of his characterization of service to full honorable. 

2.  (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation

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

Applicant's DD Form 214 (Member 1 and 4)
Thirty-two pages from Applicant's service
Character reference dated January 5, 2001
Character reference dated August 25, 2000
Character reference, undated
Character reference, undated
Character reference from Applicant's wife, undated
Character reference dated August 26, 2000
Character reference dated August 3, 2000
Character reference, undated
Character reference dated January 2, 2001
Character reference dated December 17, 2000
Character reference dated January 4, 2001
Character reference dated August 25, 2000
Character reference dated August 28, 2000
Character reference dated August 29, 2000
Character reference dated December 18, 2000
Character reference dated August 25
Character reference dated August 21, 2000
Character reference dated August 6, 2000
Character reference dated August 14, 2000
Character reference dated August 26, 2000
Character reference dated August 9, 2000
Character reference dated August 11, 2000
Character reference dated August 13, 2000
Character reference dated August 12, 2000
Character reference dated December 28, 2000

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	950721 - 960708	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  960709		Date of Discharge:  980325

Length of Service (years, months, days):

	Active:    01  08  17
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  46

Highest Rate:  GSMFN

Final Enlisted Performance Evaluation Averages (number of marks):*

Performance:  3.00 (3)	Behavior:  2.00 (3)		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM

Days of Unauthorized Absence:  31 

*Evaluation submitted by Applicant (front page only)

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:

970106:	Applicant to unauthorized absence 0700, 970106.

970110:	Applicant from unauthorized absence 0700, 970110 (4 days/surrendered).

971103:	Applicant to unauthorized absence 0710, 971103.

971106:	Applicant from unauthorized absence 1339, 971106 (3 days/surrendered).

971121:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
	Award: Restriction and extra duty for 30 days, reduction to GSMFA.  Reduction suspended for 6 months.  No indication of appeal in the record.

980221:	Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86 (3 specs): (1) Unauthorized absence from 0445, 980109 to 0445, 980112 (3 days/surrendered), (2) Unauthorized absence 0445, 980114 to 0445, 980115 (1 day/ surrendered), (3) Unauthorized absence on 980120 to 980209 (20 days/ surrendered), Uniform Code of Military Justice (UCMJ) Article 87: Missing movement on 980127, violation of the Uniform Code of Military Justice (UCMJ) Article 134 (4 specs): (1) Wrongfully communicate a threat to Hospitalman First Class to injure Mess Specialist Chief on 980209, to wit: I feel like stabbing MSC and MS1, (2) Wrongfully communicate a threat to Hospitalman First Class to injure Mess Specialist Chief on 980209, to wit: I feel like stabbing MSC and MS1, (3) Wrongfully communicate a threat to LT to injure Mess Specialist Chief on 980209, to wit: If I go back there I will stab MSC, (4) Wrongfully communicate to LT a threat to injure Mess Specialist First Class on 980209, to wit: If I go back there I will stab MS1.

980226:	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 (3 specs): (1) Unauthorized absence from 0445, 980109 to 0445, 980112 (3 days/surrendered), (2) Unauthorized absence 0445, 980114 to 0445, 980115 (1 day/ surrendered), (3) Unauthorized absence on 980120 to 980209 (20 days/ surrendered), Uniform Code of Military Justice (UCMJ) Article 87: Missing movement on 980127.  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.  

980325	DD Form 214: Applicant discharged under other than honorable conditions in lieu of trial by court martial, authority:  NAVMILPERSMAN, Article 1910-106.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 980325 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).

Responding to the Applicant’s first issue, the Board noted that, in a signed statement, the applicant requested an administrative discharge under other than honorable conditions in lieu of a trail by court-martial.  He consulted with counsel and was fully advised of the implications of his request.  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 there from may have a bearing.  The applicant stated he understood the elements of the offenses with which he was charged and admitted he was guilty of violating Article 86 and Article 87 of the Uniformed Code of Military Justice.  Neither then or now has the Applicant submitted any proof of his claim that his misconduct was somehow caused by the actions of another member of the naval service and that he should somehow not be held accountable for his actions.  Relief denied.

The Applicant’s representative submitted the following as issue 2: (EQUITY ISSUE), as it pertains to post-service conduct, in assessing the merits of his application.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation that provides for 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 inequity 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, is considered.  While the Applicant provided a number of letters of recommendation as documentation of his post-service, the Board felt that the applicant's efforts need to be more encompassing than those provided.  For example, the applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities, in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided sufficient documentation of good character and conduct.  The Applicant remains eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearings is not required but is recommended.  Relief denied.

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 [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