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

  ex-SN, USN
Docket No. ND02-01010

Applicant’s Request

The application for discharge review, received 20020710, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The Applicant requested a personal appearance hearing before the Board in the Washington National Capital Region.  The Applicant listed the Veterans of Foreign Wars as the representative on the DD Form 293.  In the acknowledgement letter, 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 20030812.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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.  Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application.  His records were reviewed on 8/18/03 and the following comments are hereby submitted:

We concur with the Applicant’s contention that his discharge be upgraded.

We refer this case to the Board for their careful and compassionate consideration and request the Applicant's discharge be reviewed for upgrading his under other than honorable conditions to general under honorable conditions.

Documentation

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

Character reference, undated
Letter from Jiffy Lube #14, dated February 19, 2002
Character reference, dated February 25, 2002

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	930127 - 930209	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  930210		Date of Discharge:  960216

Length of Service (years, months, days):

	Active:    03  00  07  (Does not exclude lost time)
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  12			AFQT:  47

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.80 (3)	Behavior:  3.67 (3)		OTA:  3.73

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM, SSDR with Bronze Star

Days of Unauthorized Absence:  58

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:

940820:	NJP for violation of UCMJ, Article 86: Absence from unit 0500-1700, 940720, violation of UCMJ, Article 87: Miss ship’s movement on 940720.
	Award: Forfeiture of $300 per month for 2 months, restriction and extra duty for 30 days.  No indication of appeal in the record.

950909:	NJP.  No further information found in service record.  [Extracted from Enlisted Performance Record.]

951017:	Applicant to unauthorized absence 0745, 951017.

951115:	Applicant declared a deserter.

951211:	Applicant from unauthorized absence 1519, 951211 (54 days/apprehended).

960216:	DD Form 214 discharged Applicant under other than honorable conditions in lieu of trial by court-martial, authority:  NAVMILPERSMAN, Article 3630650.

Separation package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960216 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.  Upon review of the service record and documentation provided by the Applicant, the Board found no reason to refute the presumption of regularity regarding this case.  Relief is therefore denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident 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.  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.  Evidence of continuing educational pursuits, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate the offense for which he was discharged.  Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his 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 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