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

FOR OFFICIAL USE ONLY

ex-GM3, USN
Docket No. ND06-00728

Applicant’s Request

The application for discharge review was received on 20060419.  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 20070301.  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: Quality of service.

	Equity: Post service.

Documentation

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

Letter from Applicant (2 pgs)
Applicant’s DD Form 214 (Service 7)
Personal Reference ltr from J_ C. E_ and T_ M. W_, dtd March 31, 2006
Letter of Recommendation from K_ S_, dtd March 27, 2006
Letter of Recommendation from M_ A_, dtd March 30, 3006
Letter of Recommendation from M_ R_, dtd April 17, 2006
Letter of Recommendation from A_ S_, dtd April 20, 2006
Letter from J_ C_ in Spanish, dtd April 1, 2006
Letter from D_ C_ in Spanish, dtd March 31, 2006
Character Reference ltr from K_ A. G_, dtd April 1, 2006
Letter from M_ L. P_ in Spanish, dtd April 3, 2006
Official Change of Duty Orders (5 pgs)
Applicant’s DD Form 214 (Service 7)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20010522 - 20010523	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010524		Date of Discharge:  20040505

Length of Service (years, months, days):

	Active:    02  11  12  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  175 days
	Confinement:		  None

Age at Entry:  27

Years Contracted:  4 (19-month extension)

Education Level:  12				AFQT:  36

Highest Rate:  GM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.0 (2) 		Behavior:  3.5 (2)			OTA:  3.52 

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, Armed Forces Expeditionary Medal.

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: 

040505:	DD Form 214: Applicant discharged under other than honorable conditions by reason of separation in lieu of trial by court-martial, authority 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 20040505 in lieu of a trial by court-martial (A) 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 (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

In the absence of a complete discharge package, the Board presumed that the Applicant was properly processed and discharged in accordance with reference (A).  The Applicant bears the burden of overcoming this presumption of regularity by presenting any substantial and credible evidence.  The Applicant did not provide any documentary evidence to challenge the propriety or equity of the discharge.  Therefore, the Board considered the Applicant’s discharge proper and equitable.  Relief not warranted.

Equity – Quality of service: The Applicant desires an upgrade based on prior good service.  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.  The Applicant’s record documents a violation of UCMJ Article 86 (Unauthorized absence for 175 days).  This is a serious offense for which a punitive discharge is authorized under Appendix 12 of the Manual for Courts-Martial 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 his service, falls well below that required for an honorable characterization of service.  Relief denied.

Equity – Post service: The Applicant contends that he has “been an outstanding citizen” since his discharge.  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.  The Applicant submitted nine character references for consideration.  The Applicant’s efforts need to be more encompassing to include evidence of continuing educational pursuits, verifiable employment records, documented community service, and certification of non-involvement with civil authorities.  At this time, there is not sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in the characterization of discharge.  And so, no relief is granted on this basis.

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.  Additionally, the Board has no jurisdiction over reenlistment, reentry, or reinstatement into any of the Armed Forces.  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.

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), re-issued October 2002, effective 22 Aug 2002 until 30 May 2005, Article 1910-106 (formerly 3630650), 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, 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