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

FOR OFFICIAL USE ONLY

ex-SN, USN
Docket No. ND06-00499

Applicant’s Request

The application for discharge review was received on 20060221.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  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 20061130.  After a thorough review of the available 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 a trial by court-martial.

PART I – DECISIONAL ISSUES

Issues

No decisional issues were submitted by the Applicant.

Documentation

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

Applicant’s DD Form 214 (Member 4)
Applicant’s DD Form 214 (Member 1)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20010922 - 20011010	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20011011		Date of Discharge:  20031126

Length of Service (years, months, days):

	Active:    02  01  15  (Does not exclude lost time)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  50 days
	Confinement:		  None

Age at Entry:  17 (Parental Consent)

Years Contracted:  4 

Education Level:  12				AFQT:  34

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (1)		Behavior:  3.0 (1) 		OTA:  3.17 

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

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority:  MILPERSMAN, Article 1910-106 (formerly 3630650).

Chronological Listing of Significant Service Events: 

030313:	NJP for violations of UCMJ:  Article 86: Specification:  In that Seaman J_ K. J_ (Applicant), on active duty, did, on or about 0600, 030605, without authority, absent himself from his unit, to wit: USS BELLEAU WOOD (LHA 3) in port San Diego, California, and did remain so absent until on or about 0630, 030605. (30 minutes).
	Article 92:  Specification 1: In that Seaman J_ K. J_, on active duty, having knowledge of a lawful order issued by BM1 M_, U.S. Navy, to make his rack and correct his unsatisfactory uniform, an order it was his duty to obey, did, on board USS BELLEAU WOOD (LHA 3), on or about 030505, wrongfully fail to obey the same.
Specification 2: In that Seaman J_ K. J_, on active duty, having knowledge of a lawful order issued by the CPO Disciplinary Review Board, U.S. Navy, to not cut lines into his eyebrows, an order it was his duty to obey, did, on board USS BELLEAU WOOD (LHA 3), on or about 030505, wrongfully fail to obey the same.
Article 121:  Specification:  In that Seaman J_ K. J_, on active duty, did, onboard USS BELLEAU WOOD (LHA 3), on or about 030602, wrongfully steal one pair of black in color work boots, of some value, the property of SN R_, U.S. Navy.
	Award:  30 days restriction and extra duty and reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

030619:	Retention Warning:  Advised of deficiency (violations of the UCMJ adjudicated at nonjudicial punishment), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030822:	Applicant to unauthorized absence on 030822.  [Extracted from DD Form 214].

011011:	Applicant from unauthorized absence on 031010.  [Extracted from DD Form 214].

031104:	Applicant completed separation physical.

031126:	DD Form 214: Applicant discharged under other than honorable conditions by reason of in lieu of trial by court-martial per MILPERSMAN 1910-106.

Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031126 in lieu of a trial by court-martial (A and B) with a service characterization of under other than 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 (C and D).  The Board presumed regularity in the conduct of governmental affairs (E).

The Applicant submitted no decisional issues for consideration.

In the absence of a complete discharge package, the Board presumed regularity of governmental affairs.  As such, the Board presumed that the Applicant requested discharge to escape trial by court-martial; that the Applicant had the elements of the offense for which he was charged fully explained by counsel; that the Applicant admitted guilt to the offense; and that the Applicant 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 a retention warning and nonjudicial punishment proceedings for violations of Articles 86, 92 and 121 of the UCMJ.  Violations of Articles 92 and 121 of the UCMJ are serious offenses.  The Applicant’s 50-day period of unauthorized absence, which was not adjudicated, is also the commission of a serious offense.  Serious offenses are punishable by punitive discharge if adjudged as part of the sentence upon conviction at special or general court-martial.  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 following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any post-service documentation for the Board to consider.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment, enlistment or educational opportunities.  

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 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, Article 92, failure to obey a order/regulation or Article 121, larceny, 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.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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