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

FOR OFFICIAL USE ONLY

ex-HM2, USN 
Docket No. ND03-01476

Applicant’s Request

The application for discharge review was received on 20030910.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to “EAOS”.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050811.  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 and the reason for discharge shall not change.  The discharge shall remain:  GENERAL (UNDER HONORABLE CONDITIONS)/SEPARATION FOR MISCELLANEOUS/ GENERAL REASONS, authority: MILPERSMAN, Article 1910-126.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“Sirs(s),

     I request a documentary record discharge review to have my characterization of service changed from general/under honorable conditions to honorable.  Should I require representation, allow any service officer form the VFW, American Legion or AmVets access to any information or proceeding.  I do not believe my appearance before the board should be necessary, but I or my representative will appear, should you so desire.

The first issue I ask you to consider is the inequity of my discharge.  You will find my service record to be pristine with regard to any infractions during the 79 months of service prior to the incident in question.  Lost time listed was spent in military custody, or civilian custody at the request of the military.  In addition please note that my service record strongly indicates a dedicated sailor, volunteering to do the hardest jobs, and excelling at it, a 4.0 first tracker who made E-5 in under three years, with a promising career, prior to the charges brought against me(see encl 7-17).  Since the incident, while on appellate leave and after my discharge, and today, I continue to be a productive member of society, having overcome many challenging legal, vocational and social issues related to my experiences with the military and my forced career path change.  I support a happy family of four, and spend many hours supporting veterans organizations to which I belong (see encl 6).  I continue to love my country, and am dedicated to her safety and security.

The second issue I ask you to address, is impropriety of the separation authority by discharging me at all, in absentia, when in fact, my whereabouts were known to the military, and they were directed by the Armed Forces Court of Appeals to either conduct a Dubay (evidentiary) hearing or, vacate charges.  They chose to dismiss charges and did not fulfill the obligation to “make me whole again” as generally required in overturned cases (see encl 5).  In addition, note that my case was overturned due to evidence of impropriety on the part of the government (see encl 4).  That the government conducted itself properly during the investigation and trial can not be assumed.  I do not expect to have my day in court here, with this board, to dispute the validity of those charges, I was deprived of that day by my commands misguided manipulation of the system.  The fruit of that tree is unproven, now dismissed charges, which I wholly dispute, that I would ask you to give no weight to when deciding my review outcome.

My third request is a genuine plea to fellow patriots to allow me another victory, that I may continue my personal quest to set the record as straight as possible, and continue my efforts to insure these injustices I have suffered happen to not even the least of us.  I beg this honorable board for clemency.  I seek justice, and know it exists, both in y heart and yours.  Your gracious grant of relief based on this simple plea would suffice to renew my will to proceed in these endeavors.

Respectfully,
[signed]
A. R. S_ (Applicant)”

Documentation

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

United States v. Sherman, 51 M.J. 73 (U.S. Armed Forces 1999) (8 pages) (2 copies)
Applicant’s DD Form 214
Copy of UCMJ Art. 75(a) Restoration after dismissal
Letter of reference from AmVets Post 2, K_ W. S_, Commander, dated August 27, 2003
Letter of reference from Family Practice Associates, R_ W. K_, CDR, USNR/MC, dated June 25, 1995
NAVPERS 1306/7, Enlisted Personnel Action Request, dated May 23, 1995
Letter of Appreciation, Naval Military Personnel Command, Hd, Hospital Corpsman/Dental Technician Assignment Branch, dated September 20, 1989
Letter or Appreciation, Literacy Volunteers, E_ P_, dated July 19, 1995
Character reference from J_ A. R_, RN, Nurse Clinician, undated
Character reference from J_ A. L_, HM1(SW), USNR, undated
Character reference from A_ P_, HM1, USNR, dated July 23, 1995
Character reference from M_ M_, HM2, USNR, undated
Character reference from J_ A. V_, Jr., HM2, undated (3 pages)
Character reference from M_ P. W_, HM1, USNR-R, dated July 3, 1995 (2 pages)
Character reference from J_ M. T_, HM2, dated July 22, 1995 (3 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	881230 - 890122	COG
	Active:   USN			890123 - 950105	HON

Period of Service Under Review:

Date of Enlistment:  950106		Date of Discharge:  010710

Length of Service (years, months, days):

	Active:    06  06  05 (Does not exclude lost time.)
	Inactive:  None

Age at Entry:  32			Years Contracted:  6

Education Level:  12			AFQT:  77

Highest Rate:  HM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.0(1)		Behavior:  3.8(1)		OTA:  4.0

Military Decorations:  None

Unit/Campaign/Service Awards:  National Defense Service Medal, Navy Unit Commendation, Sea Service Deployment Ribbon, Southwest Asia Service Meda; (w/1 Star), Kuwait Liberation Medal, Rifle Expert Medal, Pistol Expert Medal, Letter of Commendation, Letter of Appreciation, Good Conduct Medal

Days of Unauthorized Absence:  215

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

GENERAL (UNDER HONORABLE CONDITIONS)/SEPARATION FOR MISCELLANEOUS/GENERAL REASONS, authority:  MILPERSMAN, 
Article 1910-126.

Chronological Listing of Significant Service Events:

950106:	Reenlisted this date for 6 years.

950709:	Pre-trial confinement until 951017 (day for day – 100 days).

951018:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 89, (2 specifications):  On 950709 disrespectful toward superior officer.
	Charge II:  violation of UMCJ, Article 128:  On 950709 commit an assault.
	Charge IV: violation of UCMJ, Article 134 (2 specs).  On 950709 wrongfully and willfully discharge a firearm and on 950709 wrongfully communicate a threat.
	Sentence:  Confinement for 150 days, forfeiture of $200 pay per month for 5 months, reduction to E-1, and Bad Conduct discharge.
	CA 960104:  The sentence approved and ordered executed, except for bad conduct discharge, but the execution of that part of the sentence extending to confinement in excess of 100 days will be suspended for 12 months from the date of trial at which time, unless sooner vacated, the suspended part of the sentence will be permitted without further action.  Sentence to confinement was deferred in accordance with the pretrial agreement.  Accused given credit with having served pretrial confinement from 950709 to 951017.

951108:	Unauthorized absence from TPU since 0715.

960320:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 960320 having been an unauthorized absentee since 0715, 951108 from TPU Norfolk.

960611:	Administratively return to military control at 0800 and administratively restored to full duty status (215 days).

960611:	Report of Return of Deserter.  Administratively returned to military control 0800, 960611 at TPU Norfolk, VA.  Administratively placed on mandatory appellate leave.  

960621:	Applicant to appellate leave.

990715:	USCAAF:  Decision of NMCCCA is set aside.  Record of trial is returned to the JAG of the Navy for submission to an appropriate special court-martial authority.  That authority may refer the record to a special court-martial for a limited hearing on the matters noted or, if he determines in his discretion that further proceedings are impracticable, dismiss the charges and forward an authenticated copy of his dismissal action to this Court.  If a special court-martial is convened, the military judge, under the provisions of Article 39(a), UCMJ, 10 USC § 839 (a), will conduct the limited hearing.  At the conclusion of the proceedings, he will enter findings of fact and conclusions of law and then return the record and a verbatim transcript of the hearing directly to this Court.

010505:	Joined NAMALA Washington, D.C. for record purposes.

010529:	Supplemental Special Court-Martial Order and Action:  The findings of guilty and the sentence are disapproved and the charges dismissed.  All rights, privileges, and property of which the Applicant has been deprived by virtue of the findings of guilty and sentence so set aside will be restored.  The Applicant shall be separated per MILPERSMAN 1910-104 or 1910-126.

010710:	DD-214:  Applicant discharged in absentia with a General (Under Honorable Conditions), Narrative Reason – Miscellaneous/General Reasons, Authority as MILPERSMAN 1910-126 & SPCMSO NO 1-01 DTD 2001MAY29.

The Service Record did not contain a complete discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010710 with a general (under honorable conditions) by reason of Miscellaneous/General Reasons (A).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  The Applicant contends that his discharge is inequitable because it is based on a single isolated incident in 79 months of total service.  Applicable regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment.  Furthermore, there are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis of characterization for a Sailor’s overall service.  The incident need not result in formal punishment to be properly used to characterize a Sailor’s service.  The Applicant’s service was marred by an unauthorized absence from 19951108 to 19960610, a period totaling 215 days.  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.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends that his discharge should be upgraded because of improprieties in the discharge process.  Although the record is incomplete, the evidence of record indicates the Applicant, in accordance with his pleas, was convicted at special court-martial on 19951018 for violations of UCMJ Articles 89, 128, and 134.  Upon review of the conviction, the United States Court of Appeals for the Armed Forces ruled that there existed too many unresolved questions concerning unlawful command influence and an unlawful sub rosa agreement.  The Court ordered the decision of the United States Navy-Marine Corps Court of Criminal Appeals affirming the Applicant’s conviction set aside, and a return of the case to the Judge Advocate General of the Navy for submission to an appropriate special court-martial convening authority.  The Court further directed the conduct of a DuBay hearing to inquire into the questions raised on appeal or, in the alternative, a dismissal of the charges.  On 20010529, the charges were dismissed and all rights, privileges, and property of which the Applicant was deprived as a result of the court-martial were restored.  On 20010710, the Applicant was discharged by reason of convenience of the government – review action with a general (under honorable conditions) discharge.  Despite the Applicant’s contentions to the contrary, the NDRB could find no errors in the Applicant’s discharge processing.  As noted above, a general (under honorable conditions) discharge was merited based upon the Applicant’s unauthorized absence.  Additionally, the NDRB noted that separation by reason of convenience of the government – review action was appropriate.  The Applicant’s 215 days of unauthorized absence constituted “lost time” that changed his EAOS to 20010808.  The Applicant’s administrative separation on 20010710 was thus well within the limits of his contract with the United States Navy.  The Applicant’s issue is without merit.  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 Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that could be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  The Board received and considered all of the Applicant’s submissions, including his letter of recommendation from the American Veterans of World War II, Korea, and Vietnam.  After careful consideration, the Board concluded the Applicant’s post-service achievements have been insufficient to mitigate his misconduct while in the Naval service.  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 15560D), Change 18, effective
12 Dec 97 until 21 Aug 2002, Article 1910-126 (formerly 3620205), Separation by Reason of Convenience of the Government – Review Action

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023