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

ex-OS2, USN
Docket No. ND03-01388

Applicant’s Request

The application for discharge review was received on 20030820.  The Applicant requests the characterization of service received at the time of discharge be changed to general/ under honorable conditions.  The Applicant requests a personal appearance discharge review before a traveling panel.  The Applicant did not designate a representative on the DD Form 293.  In the acknowledgement letter, the Applicant was formed that the Board first conducts a documentary record review prior to any personal appearance hearing, and was further informed that the Board does not travel; all hearings are held in the Washington, D.C. area.  

Decision

A documentary review was conducted in Washington, D.C. on 20040608.  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 1910-106 (formerly 3630650).

The NDRB did note administrative error(s) on the original DD Form 214.  Block 12a, Date Entered AD This Period, should read:  “97  JUL  08” vice “97  OCT  06,”and Block 12c, Net Active Service This Period, should read:  “03  07  26” vice “03  04  28” The Commander, Naval Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1“I WAS DISCHARGED IN LIEU OF TRIAL BY COURTMARTIAL.  THE PAPERWORK STATES THAT I WOULD RECEIVE A GENERAL UNDER HONORABLE.  HOWEVER, I NOTICED AFTER RELEASE THAT IT STATES ON THE DD214 UNDER OTHER THAN HONORABLE.  I AM SUBMITTING DOCUMENTS THAT SHOW CONVENING AUTHORITY SEPARATION ACTION AS A GENERAL UNDER HONORABLE.”

Documentation

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

Copy of DD Form 214
Undated document (Subj: OS2 M_ E. K_ (Applicant), USN, (ssn #); REPORT OF ADMINISTRATIVE SEPARATION
Undated document, USS KITTY HAWK, SPECIAL COURT-MARTIAL CONVENING AUTHORITY SEPARATION ACTION.

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	960808 - 970707	COG

Period of Service Under Review:

Date of Enlistment:  970708		Date of Discharge:  010604

Length of Service (years, months, days):

	Active:    03  10  27 (Doesn’t exclude lost time.)
	Inactive:  None

Age at Entry:  17 

Years Contracted:  4 

Education Level:  12			AFQT:  48

Highest Rate:  OS2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*	Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  90 

*No Marks Found in service record.

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 1910-106 (formerly 3630650).

Chronological Listing of Significant Service Events:

000925:	SARD:  Self-referral – Pt stated:  I feel that what I have done is bad and I am here get my life back together.  Applicant determined to be drug dependence – cocaine, ecstasy, painkillers.  Withdrawal risk is deemed LOW, patient does not need hospitalization.

010123:	USS KITTY HAWK, Aviation Medicine Department:  Conducted separation physical exam.

010208:	Transferred temporary duty to Transient Personnel Unit, Naval Station, San Diego, CA, for separation process.

010209:	Unauthorized absence from TPU San Diego, CA since 0700.  Intentions unknown.

010510:	Surrendered to military authorities at TPU, Great Lakes, IL, at 1630, 010510 (90 days).  Returned to military control at TPU Great Lakes, IL.  Retained onboard for disciplinary action/disposition.

010510:	Placed in pre-trial restriction.

010510:	Charges Sheet for violation of the Uniform Code of Military Justice (UCMJ) Article 86:  On or about 0700, 09 Feb 2001 without authority, absent himself from his organization, to wit:  Transient Personnel Unit, located at San Diego, CA, and remained so absent until on or about 1630, 10 May 2001.

010515:	Applicant requested an administrative discharge in lieu of a trial by court-martial.  He waived counsel.  The Applicant stated he understood the elements of the offense(s) with which he was charged, and admitted he was guilty of all the charges preferred against him.  Specifically, he admitted to violating UCMJ, Article 86: unauthorized absence from 0700, 9FEB01 until 1630, 10MAY01.  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.  

010518:	The Commanding Officer, Transient Personnel Unit, Great Lakes, IL, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge Under Other Than Honorable Conditions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010604 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.  In a signed statement, the applicant requested an administrative discharge in lieu of a trial by court-martial.  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.  The applicant stated he understood the elements of the offenses with which he was charged.  He admitted he was guilty of violating Article 86.

The Applicant’s contention that, “the paperwork states that I would receive a general under honorable” and that he should not have, therefore, received an under other than honorable conditions discharge is without merit.  The Applicant went on unauthorized absence in excess of thirty days after his previous command transferred him to TPU, an infraction of the UCMJ.  This infraction eventually resulted in his request for discharge in lieu of trial by court-martial.  The Applicant’s service record provides clear evidence that the discharge authority directed discharge Under Other Than Honorable Conditions.   Relief denied.

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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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 29, effective 
11 Jul 2000 until 21 Aug 2002, Article 1910-106 (formerly 3630650), 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 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