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

  ex-FR, USN
Docket No. ND03-00030

Applicant’s Request

The application for discharge review, received 20021002, 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.  Subsequent to the application, the Applicant obtained representation by the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20030828.  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/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

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 12/3/2002 and the following comments are hereby submitted.  We concur with the Applicant 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 the Applicant discharge to Honorable.

Documentation

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

Applicant's DD Form 214.

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	890830 - 890831	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  890901		Date of Discharge:  910924

Length of Service (years, months, days):

	Active:    02  00  24	Does not exclude lost time
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  27

Highest Rate:  FA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.20 (1)	Behavior:  3.20 (1)		OTA:  3.20

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  97

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

910429:	Special Court Martial
	Charge I: violation of the UCMJ, Article 86 (6 specs):
	Specification 1: Unauthorized absence 1945, 901018 until 0330, 901019 (7 hours and 45 minutes).
	Specification 2: Unauthorized absence 901020 until 901022 (3 days)
	Specification 3: Unauthorized absence 0700, 901023 until 0700, 901024 (1 day/surrendered).
	Specification 4: Unauthorized absence 901104 until 901106.
	Specification 5: Unauthorized absence 1130, 901113 until 1521, 910109 (56 days/surrendered).
	Specification 6: Unauthorized absence 0630, 910302 until 2329, 910408 (36 days/surrendered).
	Charge II: violation of the UCMJ, Article 134:
	Specification: Breaking restriction on 901113.
	Findings: to Charge I and II and specifications thereunder, guilty.
	Sentence: CHL for 4 months, forfeiture of $400 per month for 4 months, reduction to FR.
	CA 910520: Sentence approved and ordered executed.

910429:	Applicant to confinement.

910712:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

910712:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights.

910719:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

910804:	Applicant from confinement.

910826:	Chief of Naval Personnel recommended to Assistant Secretary of the Navy (Manpower and Reserve Affairs) Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

910829:	Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

910906:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19910924 under other than honorable conditions for misconduct due to commission of a serious offense (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 (C and D).

In the Applicant’s issue 1, the Board reviewed the Applicant’s discharge for possible upgrade.  Normally, to permit relief, an error of propriety or equity must have occurred during the period of enlistment in question.  No errors were discovered during a review of the Applicant’s enlistment and subsequent discharge.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  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 can be considered.  Examples of documentation to provide to the Board for consideration include verification of educational pursuits, verifiable employment record(s), documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle (if appropriate).  At this time, the applicant has not provided any documentation for the Board to consider.  Therefore, no relief will be granted.

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), effective 15 Aug 91 until 
04 Mar 93, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 86 (unauthorized absence for a period in excess of 30 days), if adjudged at a Special or General Court-Martial.

C.  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.
D.  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