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

FOR OFFICIAL USE ONLY

ex-ABFAN, USN
Docket No. ND06-00619

Applicant’s Request

The application for discharge review was received on 20060404.  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 20070125.  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 a trial by court-martial.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues:

Equity: Post service

Equity: Employment opportunity

Documentation

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

Letter from Applicant, dtd January 27, 2006 (2), (2 pgs) 
Fax Cover Sheet, dtd January 27, 2006
Applicant’s DD Form 214 (Member 4) (2)
Applicant’s DD Form 214 (Member 1) (2)
Excerpts from Service Record (41 pgs)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19941013 - 19941103	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19941104		Date of Discharge:  19990114

Length of Service (years, months, days):

	Active:    04  02  10  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  833 days
	Confinement:		  None

Age at Entry:  19 

Years Contracted:  4 

Education Level:  12				AFQT:  48

Highest Rate:  ABFAN

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, Armed Forces Expeditionary Medal, Sea Service Deployment Ribbon, Navy Battle “E” Award.

* Not Available

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: 

961009:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter having been on unauthorized absence since 0700, 960905 from USS NIMITZ (CVN 68).

981216:	Applicant apprehended by civil authorities at 2330 in Denver, CO.

981221:	Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86:  Unauthorized absence (UA) from 0700, 960905 to 0930, 981217.

981221:	Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  He waived his right to consult with counsel.  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: Did on or about 0700, 960905, without authority, absent himself from his unit, to wit: USS NIMITZ (CVN-68), located at Bremerton, WA, and did remain so absent until apprehended on or about 0930, 981217.  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.

981221:	Administrative Remarks: No disciplinary action taken for the period of absence from 0700, 960905 to 0930, 981217.  Administrative checkage for this period of absence.

981221:	The Commanding Officer, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge under other than honorable conditions.

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 19990114 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 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).

When a member’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  Characterization of service 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.  There is irrefutable evidence that the Applicant’s conduct during his time in service was not honorable.  Indeed, the Applicant’s records contain a violation of UCMJ Article 86 (Unauthorized absence for 833 days).  Violation of Article 86 is a serious offense for which a punitive discharge is authorized under Appendix 12 of the Manual for Courts-Martial (B) and typically warrants a characterization of service as under other than honorable conditions.  The Applicant’s conduct, which forms the primary basis for determining the character of service, falls well below that required for an upgrade in characterization of service.  Relief denied.

Equity – Employment opportunity: The Applicant is advised that there is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits or enhancing employment and educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  Since these issues do not provide a foundation upon which the Board can grant relief, relief on this basis is not warranted.

Equity – Post service: Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question, but the Board found no such impropriety or inequity.  While 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 service, the Board 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.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, verifiable employment records, documented community service, and certification of non-involvement with civil authorities are examples of documentation that should have been provided to receive consideration for relief based on post-service conduct.  At this time, the Applicant did not provide any post-service documentation for consideration.  Relief on this basis 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 post-service accomplishments or any other evidence related to the 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 18, effective 
12 Dec 1997 until 10 July 2000, 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 5420.174D 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