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

FOR OFFICIAL USE ONLY

 ex-SA, USN 
 Docket No. ND05-00054

Applicant’s Request

The application for discharge review was received on 20041006.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050815.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was 3 to 2 that the character of the discharge shall not change.  The discharge shall remain GENERAL (UNDER HONORABLE CONDITIONS)/COMPLETION OF REQUIRED ACTIVE SERVICE.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

No issues were submitted by the Applicant.

Documentation

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

Copy of the Applicant’s DD Form 214
Copy of  Special Court-Martial Supplemental Order No. 03-1547, dtd August 13, 2003 
PART II - SUMMARY OF SERVICE

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

	Inactive:  USAF (DEP)	(Not Available) - 19960924 COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19960625		Date of Discharge:  20030818

Length of Service (years, months, days):

	Active:    06 09 29  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  26 days
	Confinement:		  35 days

Age at Entry:  18 

Years Contracted:  4 

Education Level:  12				AFQT:  48

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*	Behavior:  NA*	OTA:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Sea Service Deployment Ribbon

* Not Available

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

GENERAL (UNDER HONORABLE CONDITIONS)/COMPLETION OF REQUIRED ACTIVE SERVICE, authority: MILPERSMAN, Article 1910-104.

Chronological Listing of Significant Service Events: 

960925:	Pre-service waiver (civil) for simple possession of marijuana granted.  

970610:	NJP held this date.  [Extracted from NAVPERS 1070/604, no additional information in the Service Record.]

980130:	Applicant to unauthorized absence from the USS SPRUANCE this date.

980225:	Applicant from unauthorized absence (26 days/surrendered) this date.

980327:	Special Court Martial 
	Charge I:  violation of the UCMJ, Article 86.
	Specification:  Unauthorized absence 980130 - 980225, [26 days/S.]
	Charge II:  violation of UMCJ, Article 112a.
	Specification:  Wrongful use of a controlled substance on or about 980218 through 980225.
	Findings:  to Charge I and the specifications thereunder, guilty, to Charge II and the specification thereunder, guilty
	Sentence:  Confinement for 40 days, forfeiture of $600 per month for 1 month, reduction to E-1, Bad Conduct discharge.
	CA 990205:  In accordance with the terms of the pre-trial agreement, the sentence approved and ordered executed, except for bad conduct discharge.
		
980327:	Joined Naval Waterfront Brig, for confinement. [Extracted from CA letter of 990205.]

No Date:	From confinement.  [Date of release not contained in the Service Record.  Extract from CA letter of 990205 states that the Applicant’s pre-trial agreement suspends confinement in excess of 35 days.]

No Date:	 Applicant to appellate leave. [Extracted from Affidavit for Lost Record of Trial 030703.]

No Date:	Joined for record purposes only to NAMALA. [Extracted from DD-214.]

030703:	Affidavit for lost Record of Trail.  Comments: “ The Navy-Marine Corps Appellate Review Activity (NAMARA) has received no record of trial.  An exhaustive search by NAMARA, Trial Service Office Southeast, Navy Region Southeast, Legal Officer of USS SPRUANCE, Clemency and Parole, and the Staff Judge Advocate of Carrier Group Six failed to locate either the record of trial or an electronic record of proceedings.  The record of trial presumed lost.  The database maintained by the Navy-Marine Corps Appellate Leave Activity indicates SR S_ is currently on appellate leave.”	

030722:	Applicant files a petition to the Navy -Marine Corps Court of Criminal Appeals (NMCCA) for extraordinary relief in the nature of a writ of error coram nobis.  The writ petition is submitted as a result of the Respondents’ (US government) inability to produce the record trial.  
Issue:  As the Respondent cannot produce a properly authenticated record of trial, the petitioner (Applicant) cannot obtain the statutorily mandated review to which he is entitled. 
Relief Sought: The petitioner respectfully requests that the NMCCCA issue a writ of error coram nobis ordering that the findings and sentence in this case be set aside and ordering the Respondent to dismiss any and all charges relating to this court-martial.

030724:	NMCCA:  The Government concedes it is unable to produce an authenticated original or copy of the Petitioner’s record of trial.  Accordingly, the Government concedes that the findings and sentence should be set aside and the charges dismissed.

030725:	NMCCA: Orders (No. 2003 01450) that the petitioner’s Petition for Extraordinary Relief in the Nature of a Writ of Error Coram Nobis is granted.  The findings and the sentence are set aside and the Charges are dismissed.   All rights, privileges, and property of which the petitioner was deprived by virtue of the execution of any portion of the sentence will be restored.

030808:	Office of the Judge Advocate General of the Navy forwards NMCCA Order (No. 2003 01450) to Commanding Officer, Navy and Marine Corps Appellate Leave Activity.  Directs compliance no later than 22 September 2003.

030813:	SSPCMO:  In the special court-martial case of Seaman Apprentice A_ T. S_, the findings of guilty and sentence as promulgated in Commanding Officer, USS SRUANCE (DD963), Special Court-Martial Order No. 1-98, dated 5 February 1999, were set aside and dismissed by the US Navy-Marine Corps Court of Criminal Appeal on 25 July 2003 in NMCCA No.200301450.  All rights, privileges, and property of which the accused has been deprived by virtue of the findings of guilty and the sentence so set aside will be restored.

030818:	DD-214:  Applicant discharged this date with a characterization of General (Under Honorable Conditions) by reason of completion of required active service.

Service Record did not contain the Administrative Discharge package.  
Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030818 by reason of completion of required active service (A) with a service characterization of general (under honorable conditions).  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 board presumed regularity in the conduct of governmental affairs (D). 

The Applicant introduced no decisional issues for consideration by the Board.  

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted.  The Applicant’s service record is missing elements of his summary of service, specifically his Performance, Behavior, and Overall Trait Average marks.  In addition, the Applicant’s administrative discharge package in not contained in his service record.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his request for an upgrade to his discharge characterization.  There is no evidence in the record, nor has the Applicant produced any evidence, to support his request for an upgrade of his discharge.  There is no evidence of impropriety or inequity in the Applicant’s discharge and the Applicant’s misconduct is clearly documented.  Therefore, relief is 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.  A general 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 a nonjudicial punishment proceeding.  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 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.  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.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 02 until 19 June 2005, Article 1910-104 (previously 3620150), SEPARATION BY REASON OF EXPIRATION OF ACTIVE OBLIGATED SERVICE (EAOS).

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