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

 ex-HN, USN
Docket No. ND04-01420

Applicant’s Request

The application for discharge review was received on 20040917.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D. C. area.  The Applicant did not respond.

Decision

A documentary review was conducted in Washington, D.C. on 20050118.  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:

1.  “Would Like the Board of Trustee’s to Evaluate My Service Performance Beginning From Day One.  Would Ask For Decision for Action I Was Charged With.  Thank You, E_ C_ [Applicant]”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	850822 - 860713	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  860714		Date of Discharge:  900928

Length of Service (years, months, days):

	Active:    04  02  13
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  37

Highest Rate:  HM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.52 (5)		Behavior:  3.08 (5)		OTA:  3.56

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, Pistol Sharpshooter Ribbon

Days of Unauthorized Absence:  None

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:

871020:	NJP for violation of UCMJ, Article 92:  Failure to obey order or regulation, violation of UCMJ, Article 108:  Destruction of government property.
	Award:  Forfeiture of $50.00 pay per month for 2 months, extra duty for 2 days, reduction to E-2 (reduction suspended 6 months).  No indication of appeal in the record.

890426:	Counseling:  Advised of deficiency (Failure to report to appointed place of duty), notified of corrective actions and assistance available.

890817:	Retention Warning:  Advised of deficiency (Not using the chain of command, lack of respect to senior petty officers, lack of self control displayed in stressful situations, not keeping the chain of command informed of personal situations that affect overall contribution to the command, and general attitude displayed is not conducive towards a good working environment), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

890822:	NJP for violation of UCMJ, Article 92:  Willfully disobey BO P5000.2H by driving while on the suspended/revoked list.
	Award:  Forfeiture of $50.00 per month for 1 month.  No indication of appeal in the record.

891020:	NJP for violation of UCMJ, Article 92:  Willfully disobey BO P5000.2H by driving while on the suspended/revoked list on or about 891005.
	Award:  Forfeiture of $100.00 per month for 1 month, restriction for 30 days (15 days restriction suspended), extra duty for 14 days.  No indication of appeal in the record.

891122:	Retention Warning:  Advised of deficiency (Violation of UCMJ Article 92, willfully disobeyed BO P5000.2H, by driving while on the suspended/revoked list, as evidenced by CO’s NJP on 891020 and 890822 for the same offense), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900928:	Applicant discharged under other than honorable conditions by reason of an administrative separation in lieu of a trial by court-martial.

Complete discharge package unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19900928 under other than honorable conditions in lieu of a trial by court-martial (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).

Issue 1:  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.  In the absence of a complete discharge package, the Board presumed regularity of governmental affairs.  Therefore, the Board presumed the Applicant requested discharge to escape trial by court-martial, had the elements of the offense(s) for which he was charged fully explained by counsel, that he was guilty of the offense(s) and that he had a complete understanding of the negative consequences of his actions.  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.

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 discharge 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 nonjudicial punishment proceedings for violations of UCMJ Article 92, failure to obey lawful orders, and Article 108, destruction of government property.  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 remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of 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 15560A), Change 7, effective 
25 May 89 until 14 Aug 91, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR SEPARATION IN LIEU OF TRIAL BY COURT‑MARTIAL. 

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