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

 
 ex-SA, USN
Docket No. ND03-00758

Applicant’s Request

The application for discharge review was received on 20030326.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests 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 20040224.  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

Applicant’s issues, as stated on the application:

1.  “At the time of my discharge, I was not fully aware of the outcome.  Id did get in trouble but the legal counsel at that time told me to ask for other than honorable to avoid court martial.  I was told with other than Honorable I could upgrade my discharge.  Then I found out that I did have the choice of staying active or getting out.  At this time I was frustrated and decided to get out.  My reasons for an upgrade is that I would like to go active duty in another branch of service.  I feel that I am at an age of more responsibility and I would love to serve my country.  I do respectfully request another chance to serve my country and that any type of possible upgrade be considered.  Other branches of service said that I need a lower reentry code than I have on my DD form 214.  My code is RE-4.  I only request a lower reentry code so I can be given a chance to serve my country again.

Respectfully yours
J_ D_ H_ (Applicant)”

Documentation

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

Applicant’s DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	930918 - 940614	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  940615			Date of Discharge:  951024

Length of Service (years, months, days):

	Active:    01  04  10
	Inactive:  None

Age at Entry:  17  Parental Consent		Years Contracted:  4

Education Level:  12			AFQT:  62

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.60 (1)	Behavior:  3.20 (2)		OTA:  3.20

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, BER

Days of Unauthorized Absence:  None

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:

950721:	Retention Warning: Advised of deficiency (Dereliction of duty and two specs of disobeying a lawful order.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

950901:	Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 92 (4 specs): (1) Fail to obey lawful order issued by Boatswain’s Mate C_ R_ B_ on 0810, 950811, to wit: to report to mezzanine deck to do a sweep down and pick up all trash, (2) Fail to obey a lawful order issued by Boatswain’s Mate C_ R_ B_ and Boatswain’s Mate J_ C_ H_ on 0900, 950811, to wit: to get out of the bunk and return to work, (3) Violated a lawful general regulation on 0830, 950811, to wit: Paragraph 510.7.A Standard Organization and Regulations of the U.S. Navy, dated 940411, by wrongfully using a bunk to which he was not assigned, (4) Violated a lawful general regulation on 0830, 950811, to wit: Paragraph 510.7.B. Standard Organization and Regulations of the U.S. Navy, dated 940411, by wrongfully lying in a bunk while wearing dungarees, Article 128: Commit an assault upon Boatswain’s Mate C_ R_ B_ by pointing at him with a dangerous weapon likely to produce death or grievous bodily harm on 0918, 950811, to wit: a knife, Article 134: Wrongfully communicate to Boatswain’s Mate C_ R_ B_ a threat to kill him on 0900, 950811.

950919:	Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  He consulted with counsel and was fully advised of the implications of his request.  The Applicant stated he understood the elements of the offenses with which he was charged, and admitted he was guilty of all the charges preferred against him.  Specifically, he admitted to violating UCMJ, Article 92 (4 specs): (1) Fail to obey lawful order issued by Boatswain’s Mate C_ R_ B_ on 0810, 950811, to wit: to report to mezzanine deck to do a sweep down and pick up all trash, (2) Fail to obey a lawful order issued by Boatswain’s Mate C_ R_ B_ and Boatswain’s Mate J_ C_ H_ on 0900, 950811, to wit: to get out of the bunk and return to work, (3) Violated a lawful general regulation on 0830, 950811, to wit: Paragraph 510.7.A Standard Organization and Regulations of the U.S. Navy, dated 940411, by wrongfully using a bunk to which he was not assigned, (4) Violated a lawful general regulation on 0830, 950811, to wit: Paragraph 510.7.B. Standard Organization and Regulations of the U.S. Navy, dated 940411, by wrongfully lying in a bunk wile wearing dungarees, Article 128: Commit an assault upon Boatswain’s Mate C_ R_ B_ by pointing at him with a dangerous weapon likely to produce death or grievous bodily harm on 0918, 950811, to wit: a knife, Article 134: Wrongfully communicate to Boatswain’s Mate C_ R_ B_ a threat to kill him on 0900, 950811.  The Applicant stated he was completely satisfied with the counsel he had received. The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to 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. 

950922:	Medical Examination:  Applicant evaluated by medical officer and found to be of normal mental status – no documented mental health/psychiatric illness in the past. Psychiatric evaluation not required.  Applicant understands the charges preferred against him and is capable in assisting in the preparation of his defense.  Applicant is fit for duty and should be held responsible for his actions.

Discharge package is incomplete.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19951024 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’s issues are without merit.  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 any veteran’s benefits he may have been otherwise entitled to.  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 and admitted he was guilty of all the charges preferred against him.  Relief is therefore denied.  

Additionally, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  However, neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done during the processing of a formal application for enlistment through a recruiter.  

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, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   

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, Article 92,  failure to obey a lawful order, Article 128, assault, and Article 134, wrongfully communicate a threat, 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