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

ex-AR, USN
Docket No. ND03-01155

Applicant’s Request

The application for discharge review was received on 20030620.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D.C. area.  The Board’s letter was returned.  The Applicant did not provide this Board with his current address.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040504.  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/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

No issues were submitted by the Applicant. 

Documentation

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

Copy of DD Form 214.

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	890131 - 890227	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  890228		Date of Discharge:  891216

Length of Service (years, months, days):

	Active:    00  09  29 (Doesn’t exclude lost time.)
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  58

Highest Rate:  AR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*	Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  54

*No Marks Available.

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:

890521:	Unauthorized absence from NAVCRUITRRACOM, San Diego, CA as of 0730, 21MAY89.  Intentions unknown.

890522:	Returned to military jurisdiction as of 1530, 22MAY89.  Retained on-board for disciplinary action/disposition.

890529:	Unauthorized absence from NAVCRUITRRACOM, San Diego, CA as of 2130, 29MAY89.  Intentions unknown.

890531:	Returned to military jurisdiction as of 0005, 31MAY89.  Retained on-board for disciplinary action/disposition.

890607:	NJP for violation of UCMJ, Article 86 (2 Specs):  
Spec 1:  On or about 0730, 21MAY89, without authority, absent himself from his place of duty at which he was required to be, to wit:  Bldg 93, App Trng, RTC, San Diego, CA, until on or about 1530, 22MAY89, a period of one day and eight hours.
Spec 2:  On or about 2130, 29May89, without authority, absent himself from his place of duty at which he was required to be, to wit:  App Trng, Bldg 93, RTC, San Diego, CA, until on or about 0005, 31May89, a period of about two days, three hours, and 35 minutes.
	Award:  Forfeiture of $300 per month for 1 month, restriction and extra duty for 25 days.  No indication of appeal in the record.

891002:	NJP for violation of UCMJ, Article 86:  Unauthorized absence from 89SEP11 TO 89SEP18 (7 days); violation of UCMJ Article 87:  Missed ship’s movement through neglect on 89SEP12.
	Award:  Forfeiture of $200 per month for 2 months, correctional custody for 30 days.  No indication of appeal in the record.

891102:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 891102 having been an unauthorized absentee since 0500, 891003 from USS NEW ORLEANS (LPH 11).

891117:	Report of Return of Deserter.  Applicant surrendered to military authorities on 891116 (1830) at San Diego, CA (USS NEW ORLEANS).  Retained onboard for disciplinary action (43 days).

891122:	Summary Court Martial 
	Violation of the UCMJ, Article 86:  Unauthorized absence 45 days;
	Violation of the UCMJ, Article 87:  Missing ship’s movement. 
	Findings:  Guilty on both charges.
	Sentence:  CHL for 30 days, forfeiture of $466 per month for 1 month.
	CA 891127:  Approved findings and sentence.

891116:	30 days Correctional Custody awarded at nonjudicial punishment on 2Oct89 is hereby mitigated to 30 days restriction and 30 days extra duties per order of the CO, USS NEW ORLEANS (LPH 11).

891127:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense as evidenced by nonjudicial punishments.

891127:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation and the right to make a statement.

891127:	Applicant’s statement contained in service record.

891203:	GCMCA, having record of trial reviewed by judge advocate, approved finding of guilty and determined sentence is legal.

891204:	Commanding Officer recommended discharge under other than honorable conditions by reason of a pattern of misconduct and misconduct due to the commission of a serious offense.  Commanding Officer’s comments (verbatim):  “AR B_ (Applicant) has only been in the Navy for nine months and he has already appeared at mast three times for the same offenses.  He has made no attempt to modify his behavior even though he knows that it is wrong.  The Navy is not benefiting from his service and I don’t believe he will benefit from the Navy.  He is recommended for immediate ADSEP with an Other Than Honorable discharge.”

891207:	CNMPC 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 19891216 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 case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) on two separate occasions and a summary court-martial conviction thus substantiating the misconduct.  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. An upgrade to honorable 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.   At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A), Change 8, effective 
21 Aug 89 until 14 Aug 91, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  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.  

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