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

 ex-GSMFR, USN
Docket No. ND02-01062

Applicant’s Request

The application for discharge review, received 020726, requested that the characterization of service on the discharge be changed to entry level separation or uncharacterized.  The Applicant requested a personal appearance discharge review before a traveling panel closest to [left blank].  The Applicant listed the Disabled American Veterans as the representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area.  The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030414.  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.  HIV (+) Navy Hospital Pensacola, FL Aug 11, 2000

Documentation

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

Applicant's DD Form 214
Letter to House of Representative from Department of Veterans Affairs, dated March 15, 2002

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	950929 - 960708	COG

Period of Service Under Review:

Date of Enlistment:  960709			Date of Discharge:  000818

Length of Service (years, months, days):

	Active:    04  01  10	Does not exclude lost time
	Inactive:  None

Age at Entry:  17 Parental Consent		Years Contracted:  4

Education Level:  11				AFQT:  51

Highest Rate:  GSMFA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.50 (2)			Behavior:  2.00 (2)		OTA:  2.34

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  625

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:

980112:	Applicant to unauthorized absence 0715, 980112.

980210:	Applicant declared a deserter.

980213:	Applicant surrendered to military authorities 0715, 980213 (32 days/surrendered).

980220:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
	Award: Forfeiture of $519 per month for 1 month, restriction and extra duty for 45 days, reduction to GSMFR.  Reduction suspended for 6 months.  No indication of appeal in the record.

980604:	NJP for violation of UCMJ, Article 134: False or unauthorized pass offenses, to wit: wrongful use and possession of a fake or unauthorized military identification card.
	Award: Forfeiture of $463 per month for 2 months, restriction and extra duty for 30 days.  No indication of appeal in the record.

980924:	Applicant to unauthorized absence from 1200, 980924.

981222:	Applicant apprehended by civilian authorities at 1545, 981222.

981228:	Applicant returned to military control at 1800, 981228 (95 days/apprehended).

990301:	Applicant to unauthorized absence 0730, 990301.

000711:	Applicant from unauthorized absence 1120, 000711 (498 days/apprehended).

000731:	Separation Physical:  Applicant qualified for separation and to perform all duties of rate and rank at sea and foreign shores.

000810:	Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  [Extracted from Commanding Officer's letter.]

000815:	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.

Partial separation package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 000818 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 Board is sympathetic to the Applicant’s diagnosis of HIV.  However, a characterization of service of under other than honorable conditions is warranted when the member’s conduct constitutes a significant departure from that expected of a Sailor.  In a signed statement, the Applicant requested an administrative discharge under other than honorable in lieu of a trial 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 veteran’s benefits based upon his current enlistment.  He also understood he might 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.  The Applicant stated he understood the elements of the offenses with which he was charged.  He admitted he was guilty of violating Article 86:  unauthorized absence.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflect his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for a honorable characterization of service.  An upgrade to honorable would be inappropriate.  Relief denied.

Regarding the Applicant’s request to change the characterization of enlistment to uncharacterized or entry level separation, by regulation, only members discharged within the first 180 days of their first enlistment can be given this kind of discharge.  Since the Applicant served in excess of six months, he cannot be given an uncharacterized or entry level separation.  Relief denied. 

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, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.       

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  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 29, effective 
11 Jul 2000 until 21 Aug 2002, 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