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

  ex-SN, USN
Docket No. ND04-00365

Applicant’s Request

The application for discharge review was received on 20031218.  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 review was conducted in Washington, D.C. on 20040910.  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.  “I’m asking for an upgrade so I may have the chance to better myself… This is my fault because of my stupidity (being young and dumb).

I’m asking is there anyway you can please consider to upgrade my other than honorable discharge to a General discharge my record will show and efficiency rating/behavior and proficiency mark were good.  I was a good servicemember and I was also close to finishing my tour and my ability to serve was truly impaired by my youth and immaturity, and the death of my dad.  But I’m unable to function or do the things that I need to do as a young man because the things that I need to for Self my other than honorable discharge plays a bigger part in the things that I apply for.  I’m just asking would you please give me a chance to better myself  Thank you in advance

I’ve apply to attend Morgan University in Spring 2004.”

Documentation

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

Applicant’s DD Form 214 (2)
Orientation/Registration information Spring 2004
Applicant’s DD Form 215

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	990625 - 991108	COG

Period of Service Under Review:

Date of Enlistment:  991109			Date of Discharge:  030528

Length of Service (years, months, days):

	Active:    03  06  20	(Does not exclude lost time)
	Inactive:  None

Age at Entry:  17 (Parental Consent)		Years Contracted:  4

Education Level:  9				AFQT:  61

Highest Rate:  ITSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (1)	Behavior:  3.00 (1)		OTA:  3.33

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, NER (2), NDSM

Days of Unauthorized Absence:  191

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:

010429:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0600, 010413 to 0600, 010417 (4 days/surrendered).
	Award: Forfeiture of $584 per month for 1 month, restriction and extra duty for 15 days.  No indication of appeal in the record.

010804:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0600, 010705 to 0630, 010710 (5 days/surrendered).
	Award: Forfeiture of $584 per month for 2 months, restriction for 45 days and extra duty for 30 days.  No indication of appeal in the record.

010926:	NJP for violation of UCMJ, Article 86 (6 specs): (1-5) Failing to go to appointed place of duty, to wit: missing restricted men’s muster, (6) Unauthorized absence from 0610, 010918 to 0610, 010919 (1 day/surrendered)
	Award: Forfeiture of $584 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

011005:	NJP.  [Extracted from the Awards page, no further information found in service record.]

020903:	Applicant begins a period of unauthorized absence 0600, 020903.

021007:	Applicant missed ship’s movement.

030306:	Applicant terminates a period of unauthorized absence 0020, 030303 (181 days/surrendered).

030528:	DD Form 214: Applicant discharged under other than honorable conditions in lieu of a trial by court-martial, authority:  NAVMILPERSMAN, Article 1910-106.

Complete discharge package unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030528 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 case, 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).

Issue 1:  The Applicant contends that he served the United States well and he is entitled to an upgrade.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An under other than honorable Conditions is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by four nonjudicial punishment proceedings for violations of Article 86 of the UCMJ.  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.  Relief denied.

Additionally, 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.  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.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered.  The applicant's efforts need to be more encompassing than those provided.  For example, the applicant could have produced evidence of a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities, in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge.  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), 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 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