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

 
 ex-GSMC, USN
Docket No. ND05-00534

Applicant’s Request

The application for discharge review was received on 20050207.  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 listed the Disabled American Veterans as representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050713.  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.  “Mr. G_ (Applicant) has become a good citizen in his community.  His ability to show his support of his family shows his maturity.”

Additional issues submitted by Applicant’s counsel/representative (Disabled American Veterans):

2.  “Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Other Than Honorable Discharge to that of General Under Honorable Conditions.

The FSM served on active service from February 11, 1986 to April 23, 2001 at which time he was discharged in lieu of trial by Court Martial.

On review of the documentation provided the record the Applicant has made only the comment that he has been a good citizen and member of his community and his ability to support his family shows his maturity, submitted for review to justify the change in discharge has he has requested.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D, to include a review of his in-service performance.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the Applicant.”

Documentation

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

None were submitted

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	851115 - 860210	COG
	Active:   USN			860211 - 900930	HON
					901001 - 960205	HON

Period of Service Under Review:

Date of Enlistment:  960206		Date of Discharge:  010423

Length of Service (years, months, days):

	Active:    05  02  18  (Does not exclude lost time)
	Inactive:  None

Age at Entry:  28			Years Contracted:  6

Education Level:  10 (GED)		AFQT:  77/57/

Highest Rate:  GSMC

Final Enlisted Performance Evaluation Averages (number of marks):  Enlisted performance reports were made available to the Board for review.

Military Decorations:  ESWS, NAM (4)

Unit/Campaign/Service Awards:  KLM (Kuwait), NER (3), MUC, Expert Pistol Medal, Expert Rifle Medal, Flag Letter of Commendation (2), VSM, AFEM (3), GCM (3), SSDR (6), SASM (2), NDSM, AFSM

Days of Unauthorized Absence:  170

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:

990922:	NJP for violation of UCMJ, Article 112a:  Wrongful use of controlled substance, violation of UCMJ, Article 92:  Failure to obey other lawful order, violation of UCMJ, Article 86:  Absence without leave, violation of UCMJ, Article 128:  Assault upon a sentinel.
	Award:  Special court-martial.

991019:	Applicant to unauthorized absence 1300, 991019.

991202:	Applicant apprehended by civil authorities 1613, 991202, returned to military control 1645 (43 days).

000319:	Applicant to unauthorized absence 1230, 000309.

000310:	Applicant from unauthorized absence 0730, 000310.

000612:	Applicant on unauthorized absence 0700, 000612 to 1120, 000612.

000705:	Applicant to unauthorized absence 0700, 000705 to 1454, 000705

000706:	Applicant to unauthorized absence 000706.

001111:	Applicant apprehended 001111 (127 days)

010305:	Charges preferred at Transient Personnel Unit, San Diego California on 010228 and preferred to special court-martial on 010305:
	Charge I: Violation of the UCMJ, Article 86:
Specification 1: In that Chief Gas Turbine System Technician (Mechanical) M_ D. G_ (Applicant), U.S. Navy, Transient Personnel Unit, San Diego, California, on active duty, did, on or about 19 October 1990. without authority, absent himself from his unit, to wit: USS JOHN A. MOORE (FFG 19), located at Naval Station, San Diego, and did remain so absent until he was apprehended on 2 December 1999.
Specification 2: In that Chief Gas Turbine System Technician (Mechanical) M_ D. G_ (Applicant), U.S. Navy, Transient Personnel Unit, San Diego, California, on active duty, did, at on about 1230, 9 March 2000, without authority, absent himself from his place of duty at which he was required to be, to wit: Recycling Center, located at Naval Station San Diego, California, and did remain so absent until at or about, 0730, 10 March 2000.
Specification 3: In that Chief Gas Turbine System Technician (Mechanical) M_ D. G_ (Applicant), U.S. Navy, Transient Personnel Unit, San Diego, California, on active duty, did, at on about 0700, 12 June 2000, without authority, absent himself from his unit, to wit: morning muster, located at Transient Personnel Unit, San Diego, California, and did remain so absent until at or about 1120, 12 June 2000.
Specification 4: In that Chief Gas Turbine System Technician (Mechanical) M_ D. G_ (Applicant), U.S. Navy, Transient Personnel Unit, San Diego, California, on active duty, did, at on about 0700, 5 July 2000, without authority, absent himself from his unit, to wit: Transient Personnel Unit, San Diego, California, and did remain so absent until at or about 1454, 5 July 2000.
Specification 5: In that Chief Gas Turbine System Technician (Mechanical) M_ D. G_ (Applicant), U.S. Navy, Transient Personnel Unit, San Diego, California, on active duty, did, at on about 6 July 2000, without authority, absent himself from his unit, to wit: Transient Personnel Unit, San Diego, California, and did remain so absent until he was apprehended on 11 November 2000.
Charge II: Violation of the UCMJ, Article 87.
Specification 1: In that Chief Gas Turbine System Technician (Mechanical) M_ D. G_ (Applicant), U.S. Navy, Transient Personnel Unit, San Diego, California, on active duty, did, at on about 19 October 1999, through design miss the movement of USS JOHN A. MOORE (FFG 19) with which he was required in the course of duty to move.
Charge III: Violation of the UCMJ, Article 92.
Specification: In that Chief Gas Turbine System Technician (Mechanical) M_ D. G_ (Applicant), U.S. Navy, Transient Personnel Unit, San Diego, California, on active duty, having knowledge of a lawful order issued by Operations Specialist Master Chief T_ J. H_, U.S. Navy, Command Master Chief, USS JOHN A MOORE (FFG 19), to submit to a fitness for duty medical examination, an order which it was his duty to obey, did, on board USS JOHN A. MOORE (FFG 19), on or about 31 August 1999, fail to obey the same by leaving the ship and failing to go to the fitness for duty examination after being ordered to do so.
Charge IV: Violation of the UCMJ, Article 107.
Specification: In that Chief Gas Turbine System Technician (Mechanical) M_ D. G_ (Applicant), U.S. Navy, Transient Personnel Unit, San Diego, California, on active duty, did, at on about 10March 2000, with intent to deceive, make to Chief Signalman R_ M. R_, U.S. Navy, an official statement, to wit: "I had a medical appointment yesterday and that is where I was, or words to that effect, which statement was totally false and was then known by the said Chief Gas Turbine System Technician (Mechanical) M_ D. G_, to be so false.
Charge VI: Violation of the UCMJ, Article 112a.
Specification 1: In that Chief Gas Turbine System Technician (Mechanical) M_ D. G_ (Applicant), U.S. Navy, Transient Personnel Unit, San Diego, California, on active duty, did, at or near San Diego, California, on or about 16 August 1999, wrongfully use amphetamine/methamphetamine.
Specification 2: In that Chief Gas Turbine System Technician (Mechanical) M_ D. G_ (Applicant), U.S. Navy, Transient Personnel Unit, San Diego, California, on active duty, did, at or near San Diego, California, on or about 09 December 1999, wrongfully use amphetamine/methamphetamine.
Specification 3: In that Chief Gas Turbine System Technician (Mechanical) M_ D. G_ (Applicant), U.S. Navy, Transient Personnel Unit, San Diego, California, on active duty, did, at or near San Diego, California, on or about 10 March 2000, wrongfully use amphetamine/methamphetamine.
Specification 4: In that Chief Gas Turbine System Technician (Mechanical) M_ D. G_ (Applicant), U.S. Navy, Transient Personnel Unit, San Diego, California, on active duty, did, at or near San Diego, California, on or about 30 May 2000, wrongfully use amphetamine/methamphetamine.
Specification 5: In that Chief Gas Turbine System Technician (Mechanical) M_ D. G_ (Applicant), U.S. Navy, Transient Personnel Unit, San Diego, California, on active duty, did, at or near San Diego, California, on or about 14 November 2000, wrongfully use amphetamine/methamphetamine.
Charge VI: Violation of the UCMJ, Article 121:
Specification: In that Chief Gas Turbine System Technician (Mechanical) M_ D. G_ (Applicant), U.S. Navy, Transient Personnel Unit, San Diego, California, on active duty, did, on board Naval Station, San Diego, California, on or about 9 March 2000, steal two (2) juice dispensers, military property, of some value of more than $100.00, the property of the United States Government.
Charge VII: Violation of the UCMJ, Article 134:
Specification 1: In that Chief Gas Turbine System Technician (Mechanical) M_ D. G_ (Applicant), U.S. Navy, Transient Personnel Unit, San Diego, California, on active duty, at Transient Personnel Unit, San Diego, California, on or about 10 March 2000, wrongfully solicit Damage Controlman Second Class T_ H. T_, U.S. Navy, to commit an offense under the Uniform Code of Military Justice, to wit: obstructing justice by providing a urine sample for the said Chief Gas Turbine System Technician (Mechanical) M_ D. G_ for $100.00.
Specification 2: In that Chief Gas Turbine System Technician (Mechanical) M_ D. G_ (Applicant), U.S. Navy, Transient Personnel Unit, San Diego, California, on active duty, at Transient Personnel Unit, San Diego, California, on or about 10 March 2000, wrongfully endeavor to impede an investigation in the case of the said accused by offering Damage Controlman Second Class T_ H. T_, U.S. Navy $100.00 to provide a urine sample for the said accused.

010405:	Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  He consulted with counsel and was fully advised of the implications of his request.  The Applicant stated he understood the elements of the offense(s) with which he was charged, and admitted he was guilty of all the charges preferred against him.  Specifically, he admitted to violating UCMJ, Article 86, 87, 107, 112a, 121, and 134.  The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.

010416:	Commanding Officer, Transient Personnel Unit, San Diego, California, recommended approval of the Applicant’s request for separation in lieu of trial by court-martial and a characterization of service under other than honorable conditions.

010423:	Commander, Navy Region Southwest, approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge with a characterization of service under other than honorable conditions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010423 under other than honorable conditions in lieu of a trial by court-martial (A and B).  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 (C and 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 a signed statement, the Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  He consulted with counsel and was fully advised of the implications of his request.  The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.  The Applicant stated he understood the elements of the offenses with which he was charged.  He admitted he was guilty of violating UCMJ Articles 86 (5 specifications) unauthorized absences totaling 170 days, 87, missing movement by design, 92, failure to obey order or regulation, 107, false official statement, 112a (5 specifications) wrongful use of amphetamine/methamphetamine on five occasions, 121, larceny, and 134 (2 specifications) solicitation to obstruct justice and impede an investigation.  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.

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 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, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any documentation for the Board to consider.  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), Change 29, effective 
11 Jul 2000 until 21 Aug 2002, 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, Article 87, missing movement, Article 92, failure to obey order or regulation, Article 107, false official statement, Article 112a, wrongful use, possession, etc. of a controlled substance, Article 121, larceny, and Article 134, obstruction of justice, upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-Martial.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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