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

 ex-RN, USNR
Docket No. ND02-01104

Applicant’s Request

The application for discharge review, received 020731, requested that the characterization of service on the discharge be changed to honorable.  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 030424.  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.  The discharge I received is improper because I spent 62 days in the brig with no charges.  I never saw the magistrate, or was told why I was there.  I stayed in solitary confinement the whole time.  I lost all base pay, combats, and dependence allowance.

When I was discharge from the brig, I was told that things have changed.  And I won't like it.  I was hoping that I'd have a Captain Mast or something, so I could tell my side.  But, to my surprise, I was being discharged from the military, my E-4 rank stripped from me, my medals of marksman in rifle and pistol, and the meritorious unit award, all stripped from me.  Like none of it ever happen.

I had lost everything that I had worked for, I had two children, (of whom one was very sick at the time,) a wife, and no income.  This was so devastating to me, because I did everything right.  I got the Red Cross letter, filled out the request for emergency leave, my chain of command had all signed it.  Five days latter when I came back, I was told that I'd went UA.  Before I could tell my side or try to find my request, I was sent to the brig.

I'm getting much older and wiser now.  I feel that I have lived with this disgrace long enough.  I just want what is due to me.  I'm not asking for the medals, although I worked hard for them, and have learned that I am entitled to some other.  Also I'm not asking for any of the back pay that was taken from me.  What I am asking for is to give me back a little of my self-esteem.  I have my own business in carpentry, I have been married for fifteen years, and have three children that are home schooled.  I have not been in trouble with the law, except for a speeding ticket or ticket of two.

Please if the board see fit, change my discharge to Honorable.

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)	None
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  851230		Date of Discharge:  891222

Length of Service (years, months, days):

	Active:    03  05  28
	Inactive:  00  05  25

Age at Entry:  19			Years Contracted:  8 

Education Level:  12			AFQT:  51

Highest Rate:  HN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.31 (7)	Behavior:  3.34 (7)		OTA:  3.48

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  65 

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:

860625:	Ordered to active duty for 36 months under the Active Mariner program.

870115:	UA from NSHS BETDET, Portsmouth, VA from 1000, 870115 until 1100, 870209 (25 days/S).

870226:	Applicant signed JAG Manual Appendix A-1-T, prior to his Captain's Mast which was held on 870226.  The accused talked to a lawyer prior to deciding whether to demand trial by court-martial in lieu of Captain's Mast.  In completing the remainder of the form, the accused did not demand trial by court-martial in lieu of Captain's Mast.

870226:	Non Judicial Punishment [Extracted from Enlisted Performance Record].
 
890720:	Agreed to remain on active duty for 24 months.

890908:	UA from 2D Marine Division 890908 until 890918 (10 days/S)

890920:	UA from 2D Marine Division 890920 until 891020 (30 days/S)

NO DISCHARGE PACKAGE AVAILABLE. 

PART III – RATIONALE FOR DECISION AND PERTINENT
 REGULATION/LAW

Discussion

The applicant was discharged on 891222 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: Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  The Board disagrees with the Applicant’s assertion that he was treated unfairly.  It is the Applicant’s responsibility to collect and submit documentation he believes will further his case for review by the NDRB.  The record is void of any evidence to support a claim of impropriety or injustice.  While he may feel that his child’s illness was a contributing factor, it does not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service.  His service record is marred by award of at least one non-judicial punishment (NJP) and two periods of unauthorized absence that justify the charges for a court-martial that the Board must assume is why Applicant accepted this discharge in lieu of standing trial by court-martial.  It must be noted that most Sailors serve honorably and well and therefore earn honorable discharges.  In fairness to those Sailors, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  An upgrade to honorable conditions would be inappropriate.  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 15560A), Change 7, effective 
25 May 89 until 14 Aug 91, 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