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

 ex-AA, USN
Docket No. ND04-00058

Applicant’s Request

The application for discharge review was received on 20031008.  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 hearing discharge review before the Board in the Washington National Capital Region.  The Applicant listed American Legion as representative on the DD Form 293.  In the acknowledgement letter, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary review was conducted in Washington, D.C. on 20041103.  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.  “I served honorably for 1 year prior to my very bad mistake.  I was 18 yrs old and did not know how to handle the problems I mentioned in my attached statement.  I have really learned from my mistakes to look at young men & women with problems and assist them in everyway I can.  I believe with some counseling (that I should have sought), my problem would not have gone as far as it went.  I have learned not to punish but to help when I can.  I take fully responsibility for my actions but I believe the life sentence of a less than honorable discharge was too severe.  I would have made a good sailor with mental/medical help at the time of my mistake.  I am asking you to please consider the 1 yr of honorable service and my post service conduct which has been to mostly serve people.  Please consider my age at the time and the unusual problems that I was dealing with when I messed up.  Thank you for your consideration to upgrade my discharge.”

Additional issues submitted by Applicant’s representative (American Legion):

2.  “Equity Issue:  Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application. 
_______________________________________________________________________

In accordance with 32 C.F.R., section 724.166, and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to the Applicant’s petition.

The service record is incomplete.  In particular, the discharge package is missing. Review of the available records reflect that this former member maintained satisfactory performance and conduct markings with an FPA of 3.60 and earned the NDSM.  At the time of his separation, he had charges pending for VUCMJ, Arts. 85, 86 (2 spec), 87.  On 951004, he was discharged Under Other Than Honorable Conditions in lieu of trail by court martial as authorized by NAVMILPERSMAN, Art. 3630650.

Essentially, as noted on DD Form 293 and attachment, this Applicant is requesting that his discharge be upgraded because mitigating personal problems contributed his misconduct and because of his good post-service conduct.  He has submitted 5 pages of additional documentation attesting to his good post-service character and hard work for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C, enclosure (1). 

This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

Statement from Applicant (2 pages)
Letter of Recommendation from C_ K_, City Clerk, City of Samson, dated June 10, 2003
Reference Letter from M_ W_, Captain, Samson Rescue Squad, dated June 12, 2003
Employment Reference Letter from R_ H_, Vice President, APAC, Couch Division dated June 12, 2003
Employment Verification Letter from J_ A_, Human Resources Manager, dated June 11, 2003
Employment Reference Letter from C_ K_, Mayor, City of Samson, dated June 13, 2003
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	930622 - 940606	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  940607		Date of Discharge:  951004

Length of Service (years, months, days):

	Active:    01  00  18
	Inactive:  None

Age at Entry:  17			Years Contracted:  4 (12 months extension)

Education Level:  12			AFQT:  66

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.80 (1)	Behavior:  3.60 (1)		OTA:  3.60

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  98

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:

950416:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 950410 having been an unauthorized absentee since 0630, 950310 from USS ROOSEVELT (CVN-71).

950504:	Report of Return of Deserter.  Applicant apprehended by civilian authorities on 950419 (2015) at Las Vegas, NV.  Returned to military control 950420. Returned to TPU NORVA on 950421.

950528:	UA from TPU NORVA 0715, 950528.

950630:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 950628 having been an unauthorized absentee since 0715, 950528 from TPU NORVA.

950726:	Report of Return of Deserter.  Applicant surrendered to military authorities on 950725 (0145) at TPU NORVA.  Returned to military control 950725 (0145).  Retained on board for disciplinary action/disposition.

951004:	Applicant discharged under other than honorable conditions in lieu of a trial by court-martial per CO TPU LTR 1910 SER of 22SEP95/MILPERSMAN 3630650 [extracted from DD Form 214].

Complete Discharge Package Unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19951004 under other than honorable conditions in lieu of a trial by court-martial (A and B).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this, the Board found that the discharge was proper and equitable (C and D).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (E).

Issues 1 and 2:  Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No impropriety or inequity is evident during the Applicant’s enlistment.  In the absence of a complete discharge package, the Board presumed the Applicant requested discharge to escape trial by court-martial, had the elements of the offenses for which he was charged fully explained to him by counsel, that he was guilty of the charged offenses and that he had a complete understanding of the negative consequences of his actions.  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 and falls far short of that required for an upgrade of his characterization of service.  The evidence of record 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.

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, however, 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 should 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.  As of this time, the Applicant has not provided sufficient documentation for the Board to consider.  Relief denied.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

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 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 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 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.

E.  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.  

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