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

   ex-MMFA, USN
Docket No. ND04-00119

Applicant’s Request

The application for discharge review was received on 20031027.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040715.  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).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Dear Board

My name is E_, J_. On Oct 2, 2002 I was shipped or flown to RTC Great Lakes ILL.  In which where I was to complete nine and a half weeks of basic training.  On Dec 10, 2002 my basic training was successfully completed.  I was a machinest mate, my pay grade was E-2, my rank FA./  On Dec 10, 2002 I went to NTC Great Lakes ILL/Naval Training Command to go to school to be a machinest mate.  On or about March 04, 2002 I was written up for several charges for UA, Article 86/under the UCMJ.  I never went Awall or Deserter, but I was late several times to revelie, muster and or restricted men's muster.  The reason why I was late sometimes would be because I was sleeping or sleep in my rack or bed @ BEQ 334. "I apologize".  On March 25, 2003 I was written up for disrespecting a petty officer.  My explination for my actions with all due respect are; the petty officer MM1 C_ got in face and or disrespected me.   My reaction was a response that came from my emotions rather than physical disrespect.”

Documentation

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

Letter from Applicant dated October 14, 2003
Reference Letter from J_ P_, Retired MSG, USA
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	020628 – 020712	ELS
020925 - 020930	COG

Period of Service Under Review:

Date of Enlistment:  021001		Date of Discharge:  030425

Length of Service (years, months, days):

	Active:    00  06  25
	Inactive:  None

Age at Entry:  25			Years Contracted:  4 

Education Level:  12			AFQT:  32

Highest Rate:  MMFA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*	Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

*No Marks Available for review

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:

020304:	NJP for violation of UCMJ, Article 86 (5 Specifications):  Failed to go to appointed place of duty, to wit: Restricted muster.
	Award:  Forfeiture of $575.00 pay per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days, reduction to next inferior pay grade (suspended for 6 months).  No indication of appeal in the record.

030205:	Retention Warning:  Advised of deficiency (Poor military performance, to wit: Failure to go to appointed place of duty, disrespect towards a petty officer, disobeying a petty officer), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

030205:	NJP for violation of UCMJ, Article 86: Unauthorized absence; violation of UCMJ, Article 91 (2 Specifications): Disrespectful in deportment towards a petty officer.
	Award:  Forfeiture of $260.00 pay per month for 1 month, restriction and extra duty for 14 days.  No indication of appeal in the record.

030408:	Applicant requested separation in lieu of trial by court-martial.  [Extracted from Commander's, NTC, Great Lakes Letter dated 030415.]

030415:	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 20030425 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.  On 20030408 the Applicant requested separation under other than honorable conditions in lieu of trial by court-martial.  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. Furthermore, the Applicant’s statements to the Board do not refute the presumption of regularity in this case.  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), re-issued October 2002, effective 22 Aug 2002 until Present, 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; and Article 91, disrespectful to a petty officer; 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