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

 
ex-SR, USN
Docket No. ND03-01500

Applicant’s Request

The application for discharge review was received on 20030917.  The Applicant requests the characterization of service received at the time of discharge be changed to entry level separation.  The Applicant requests a documentary record review.  The Applicant listed the Disabled American Veterans as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040617.  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/Separation 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:

“Due to pattern of conduct, I was put on restriction 2x leading to 3rd and final case.  Attorney at the time explained bad conduct request but did not explain entry-level sep.

1.  Entry-level states 6mo and less of active service could warrant entry-level separation from service- due to misconduct.

2.  Also my active service days should have stopped once entering Brig Miramar (San Diego) I was given 7mo. Active Service/military time in Brig should be inactive

3.  White vs. Secretary states all options should be explained to service member that is facing court-martial (special) (general) etc.”

Additional issues submitted by Applicant’s counsel/representative (DISABLED AMERICAN VETERANS):

4.  “After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence, assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Under Other Honorable Condition to that of Entry Level Separation.

The FSM served on active service from Separation 10, 1991 to April 26, 1992 at which time he was discharged in lieu of trial by Court Martial. 

The FSM contends the current discharge is improper because, White V. Secretary, states that all options should be explained to the service member that is facing Court Martial, and this was not done. Also the FSM states his active duty service time should have stopped once in the Brig at Miramar, that based on this he warrants an entry level separation as his time is under six months.

This creates a need for a review of the application of the standard, for the Board to determine that the applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 (c), Par. (f) (1).

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.”

Documentation

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

Two letters from Applicant
Piece of DD form 293
Piece of Applicant’s request for SILT

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	910424 - 910909	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  910910		Date of Discharge:  920428

Length of Service (years, months, days):

	Active:    00  07  19  
	Inactive:  None

Age at Entry:  17			Years Contracted:  4 

Education Level:  12			AFQT:  66

Highest Rate:  SR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  None		Behavior:  1.00 (1)		OTA:  1.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  1

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

UNDER OTHER THAN HONORABLE CONDITIONS/separation in lieu of trial by court martial, authority:  NAVMILPERSMAN, Article 3630650.

Chronological Listing of Significant Service Events:

910916:	Retention Warning:  Advised of deficiency (Non-swim qualified), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

920117:	NJP for violation of UCMJ, Article 86: UA from 0001, 920106 to 0540, 910107.
	Awarded restriction and extra duty for 14 days.  No indication of appeal in the record.

920117:	Retention Warning:  Advised of deficiency (UA), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

920130:	NJP for violation of UCMJ, Article 86: UA from 1300-1540, 920127; violation of UCMJ, Article 92: Missed restriction muster on 920117; violation of UCMJ, Article 92: Missed restriction muster on 920119.
	Awarded restriction and extra duty for 14 days.  No indication of appeal in the record.

920130:	Retention Warning:  Advised of deficiency (UA, failed to obey lawful order twice), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

920227:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense.

Undated:	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.

920303:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. 

920318:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

920320:	Charges pending at special court-martial (SPCM) for violation of the Uniform Code of Military Justice (UCMJ), Article 86: Unauthorized absence from place of duty; violation of UCMJ, Article 91: Assault on a CPO, disrespect, disobeying a lawful order; and violation of UCMJ, Article 92, disobey lawful orders.

920325:	Evaluation from Substance Abuse Coordinator, NAVCONBRIG Miramar assessed Applicant to be chemically dependent on drugs and alcohol.

920330:	BUPERS directed administrative separation held in abeyance until results of pending SPCM.

920428:	The Commanding Officer, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920428 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).

Issues 1-4.  The Applicant requested separation in lieu of trial by court-martial.  The Applicant understood that separation would be under other than honorable conditions.  The Applicant had no right to be awarded an entry level separation while awaiting the convening of a special court-martial or administrative separation for misconduct.  While in an entry level status, characterization of service under other than honorable conditions for misconduct or separation in lieu of trial by court-martial is authorized (A).  The Applicant’s statement that he was not afforded an opportunity to seek an entry level separation does not provide a basis for relief.  The evidence of record and documentation provided by the Applicant does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident during the Applicant’s enlistment.  Additionally, 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.  Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge.  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), effective 15 Aug 91 until 
04 Mar 93, 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 86, unauthorized absence; Article 91, disrespect to a SNCO; Article 92, disobey a lawful order; 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