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

  ex-EWSN, USN
Docket No. ND03-00216

Applicant’s Request

The application for discharge review, received 20021121, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  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 20031017.  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 stated

“1.	My discharge was inequitable because it was based on civil charges that were 
dropped, and ended in no conviction.

I was informed by command representative during my civil proceeding that I was to be discharged from active duty.

I never received order of recall to my last command USS MOBILE (LKA-115) and was unaware of my unauthorized absence”.

Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS)

“We concur with the Applicant’s contention that his discharge should be upgraded.  Since this Applicant served in a combat zone, we ask you to consider SECNAVINST 5420.174C Par 9.3 (1) (d) in your decision”.

Documentation

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

Letter from Applicant obtaining counsel dated December 11, 2002
Letter from Applicant dated February 20, 2002
Copy of Enlisted Performance Evaluation Report 
Copy of Navy Occupational/Training and Award History Listing (2 pages)
Copy of Personnel Qualification Standards (2 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	871116 - 871123	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  871124		Date of Discharge:  941202

Length of Service (years, months, days):

	Active:    05  02  15
	Inactive:  None

Age at Entry:  17			Years Contracted:  4 (24 months extension)

Education Level:  12 (GED)			AFQT:  63

Highest Rate:  EW2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.76 (5)	Behavior:  3.52 (5)		OTA:  3.80

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, AFEM, BATTLE”E”, NUC, KLM, CGSOR, SSDR, SASM(w/campaign)

Days of Unauthorized Absence:  713

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:

901213:	NJP for violation of UCMJ, Article 91: (4 Specifications), Disrespect toward a superior petty officer.
	Award:  Forfeiture of $300.00 pay per month for 1 month, restriction and extra duty for 15 days, reduction to E-3.  (All punishment suspended for 6 months).  No indication of appeal in the record.

920728:	Retention Warning:  Advised of deficiency (Your unauthorized absence from your appointed place of duty shows very poor judgment and disregard for your leadership responsibilities as a second class petty officer.  Your conduct in this matter is greatly disappointing and unsatisfactory), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

920909:	NJP for violation of UCMJ, Article 86: Unauthorized absence; violation of UCMJ Article 92: Disobeying a lawful order.
	Award:  Forfeiture of ½ pay for 1 month (suspended for 6 months), restriction and extra duty for 30 days, reduction to E-4.  No indication of appeal in the record.

921207:	Commenced Unauthorized Absence. [EXTRACTED FROM DESERTER/ABSENTEE WANTED BY THE ARMED FORCES DOCUMENT dtd 930427.

921227:	Apprehended by civil authorities (Visalie Jail, Porterville, CA) for possession of heroin.  USS MOBILE (LKA 115) placed on military hold 921229.  Charges dropped on 930402.  On 930407 civil authorities notified NAVSTA Long Beach Security for pickup; NAVSTA LONG BEACH Security sent a teletype to civil authority releasing military hold and ordered EW3 E__ to return to military jurisdiction on 930408.  USS MOBILE was not notified.  EW3 E_ has not returned.  [EXTRACTED FROM REPORT OF DECLARATION OF DESERTION REMARKS].

930429:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 930408 having been an unauthorized absentee since 0700, 921207 from USS MOBILE (LKA 115).

940930:	Report of Return of Deserter.  Applicant apprehended by Porterville, CA Police Dept on or about 1115, 940930.  Returned to military control 940930 (1435).  Retained onboard TPU Treasure Island, San Francisco CA.

NO DISCHARGE PACKAGE AVAILABLE. 

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19941202 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 Applicant stated that his discharge was inequitable because it was based on civil charges that were dropped, and ended in no conviction.

The Board looks at the propriety and equity of an Applicant’s discharge.  Though the civil charges were eventually dropped, they had no bearing on the character of the discharge that you received.  The Applicant’s service was marred by two non-judicial punishments (NJP) and was declared a deserter on 19930429 and returned to military control by civil authorities on 19940930.   The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Therefore the discharge process was proper and equitable.  Relief is denied.

Issue 2.  The Applicant’s counsel requests the Board’s careful and compassionate consideration in reviewing the Applicant’s discharge for upgrade to General.  The Applicant’s counsel also requests that the Board consider the Applicant’s service in a combat zone.

The Board carefully and compassionately reviewed all documentary evidence related to this case and determined that the Applicant’s discharge characterization and reason accurately reflect his service to his country.  The Board appreciates the Applicant’s service in a combat zone, however deployment status does not mitigate the seriousness of the offenses committed.

The record contains a memorandum from the Commanding Officer, Transient Personnel Unit, Treasure Island, to the Applicant, granting your request for an administrative discharge under other than honorable conditions in lieu of trial by court-martial. The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service. 

The following is provided for the edification of the Applicant.  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 may be considered.  Verifiable proof of 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, an 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 documents that may be provided to receive consideration for relief based on post-service conduct.  At this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade.

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 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, Article86, 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