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

 ex-SR, USN
Docket No. ND00-00368

Applicant’s Request

The application for discharge review, received 000124, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000824.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  My discharge was inequitable because to me at the time of my separation the Navy gave me a choice to get out or to go to a ship.  My knowledge about the military was nil at the time I had no guidance and coming from a single household did not help.  The navy did not counsel me they just punished me.  They did the same thing to me as I am use to this in no excuse all I am saying is they expected me to be perfect and being as young as I was and coming from the type of environment that I came from it just did not click in my mind that the decision that I made would land me with the dilemma's I'm faced with today.  They also told me things like when I get out that this discharge would automatically be upgraded to honorable after six months.  It was like they just wanted me to get out that's why I am typing this letter hoping that one day I will be able to work a descent job and take care of my wife and three children.  My wife is in the Army and with this type of discharge I'm not any kind of help if I could turn back the hands of time I would but I can't.  So if this means any thing to any body please consider my discharge upgrade so I can help support my family.

Documentation

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

Copy of DD Form 214.

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	901121 - 910910	COG

Period of Service Under Review:

Date of Enlistment:  910911		Date of Discharge:  940429

Length of Service (years, months, days):

	Active:    02  07  18
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (12 months extension)

Education Level:  12			AFQT:  32

Highest Rate:  WTSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.80 (1)	Behavior:  4.00 (1)		OTA:  3.80

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, .38 CAL Pistol Marksman Ribbon 

Days of Unauthorized Absence:  1 

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

920814:	Civil Conviction:  [Duval County Court Jacksonville, Florida] for charges of battery.
Sentence:  Ordered to serve six months probation, attend anger control counseling and ten days in the Duval County Jail to be served on consecutive weekends.

930506:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful order, violation of UCMJ Article 134: With intent to defraud.
	Award:  Forfeiture of $450.00 per month for 1 month (suspended for six months with the conditions to make restitution to MCI in the amount of $396.00), restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

930727:	Violation of probation and probation was extended for a period of three months.
  
940127:	Civil Conviction:  [Duval County Court, Jacksonville, Florida] for charges of driving while license suspended and careless driving.
Sentence:  Court withheld adjudication on both charges, pay $150.00 in fines and court costs.

940127:	NJP for violation of UCMJ, Article 86: (2 Specifications), UA from 931118-931119 (1day/), and from 1545-1815, 940123, violation of UCMJ Article 134: (2 Specifications), unlawful entry.
	Award:  Restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

940204:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and pattern of misconduct as evidenced by Commanding officer's non-judicial punishments of 930506 and 940127 and civilian convictions of 920814 and 940127.

940209:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

940217:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and pattern of misconduct. 

940415:	BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 940429 under other than honorable conditions for misconduct due to commission of a serious offense (A).  The Board presumed regularity in the conduct of governmental affairs (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).

The Board found that the applicant had 2 civilian convictions and 2 NJPs for serious offenses.  The applicant could have been discharged for just one of any of these 4 offenses.

In the applicant’s issue 1, the applicant states that he was “young” and that his “knowledge about the military was nil” and the “navy did not counsel me they just punished me.”  The applicant had significant misconduct, both in the service and in the civilian sector.  The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions.

There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service.  However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D).  Those factors include, but are not limited to, the following:  evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided any documentation of good character and conduct.  Therefore no relief will be granted.  The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 "afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023	 

 (1) If the offense is evidenced by a general or special court-martial conviction--the findings of which have been approved by the Convening Authority--the findings of the court-martial as they relate to the administrative discharge process (basis and reason) are binding on the Administrative Board (see Article 3610260.7a).

(2) If the offense is evidenced solely by a court-martial conviction and the court-martial Convening Authority has remitted or suspended a punitive discharge, forward the case to the same Convening Authority for endorsement according to Article 3610260.7b.

d.  Misconduct Due to Commission of a Serious Offense (processing mandatory)

(1) An individual must be processed for administrative separation when the commanding officer believes by a preponderance of the evidence that the individual committed extremely serious misconduct that either resulted in, or had the potential to result in death, or serious bodily injury, such as but not limited to:  homicide, arson, armed robbery, etc.

(2) Sexual Perversion.  An individual must be processed for administrative separation when an incident involves sexual behavior that deviates from socially acceptable standards of morality and decency.  Such behavior may violate military or civilian law and includes, but is not limited to:

(a) lewd and lascivious acts;

(b) sodomy (forcible heterosexual or child molestation); consensual and forcible homosexual acts with of-age individual shall be processed under Article 3630400);

(c) indecent assault;

(d) indecent acts; and

(e) indecent exposure.

Note that if circumstances involve an incestuous relationship, commanding officers shall notify Chief of Naval Personnel (CHNAVPERS) (Pers-661/83) immediately upon discovery.  Per OPNAVINST 1752.2, Pers-661 will review the case for referral to the Family Advocacy Program; if member is not accepted, Pers-83 will direct processing for separation.  Note that acceptance into family advocacy programs run by Family Service Centers at local commands does not constitute formal acceptance into the Navy's Family Advocacy Program.

(3) Sexual Harassment.  An individual must be processed for administrative separation following punitive actions if appropriate, on the first substantiated incident of sexual harassment involving any of the following circumstances:

(a) threats or attempts to influence another's career or job for sexual favors;

(b) rewards in exchange for sexual favors; or

(c) physical contact of a sexual nature which, if charged as a violation of the UCMJ, could result in a punitive discharge.

Note that an incident is substantiated if there has been a nonjudicial punishment or court-martial conviction, or the commanding officer is convinced based on the preponderance of the evidence that sexual harassment has occurred.  All forms of sexual harassment not mentioned above must still be handled administratively (i.e.; NAVPERS 1070/613, Administrative Remarks (Page 13) counseling, letters of instruction, nonpunitive letters, remarks in evaluations, etc.).

e.  Misconduct Due to Civilian Conviction (processing not mandatory).  An individual may be processed for administrative separation based on a conviction by civilian authorities, or action taken which is equivalent to a finding of guilty, provided the offense, or closely related offense could warrant a punitive discharge (see Manual for Courts-Martial, Appendix 12), or the sentence includes confinement of 6 months or more without regard to suspension or probation.

f.  Misconduct Due to Civilian Conviction (processing mandatory).  An individual must be processed for administrative separation based on a conviction by civilian authorities, or action taken which is equivalent to a finding of guilty, which involved an offense that either resulted in, or had the potential to result in death, or serious bodily injury, such as but not limited to:  homicide, arson, armed robbery, etc.

2.  Under this article, counseling and warning as outlined in Article 3610260.5 is only required for members being processed for misconduct due to pattern of misconduct or misconduct due to minor disciplinary infractions.  The latest offense and counseling and warning must have occurred while assigned to the parent command.  Separation activities defined in Article 3640476, and other commands to which temporary duty is authorized by CHNAVPERS, are exempt from this requirement.

3.  Characterization.  Normally Other Than Honorable, but characterization as General may be assigned when warranted.  For respondents who have completed entry level status, characterization of service as Honorable is not authorized unless the respondent's record is otherwise so meritorious that any other characterization would be clearly inappropriate.  When characterization of service as Other Than Honorable is not warranted for a member in entry level status, the separation shall be described as Entry Level Separation.

4.  Reduction in Rate.  When a servicemember serving in pay grade E-4 or above is administratively separated with an Other Than Honorable characterization of service, the member shall be administratively reduced to pay grade E-3, such reduction to become effective upon separation.

5.  Procedures

a.  The Administrative Board procedure (Article 3640200) shall be used in processing all reasons, except when processing for misconduct due to minor disciplinary infractions, in which case Notification procedure (Article 3640200) may be used.

b.  Separation processing for misconduct due to civil conviction may be initiated whether or not a member has filed an appeal of a civilian conviction or has stated an intention to do so.  Execution of an approved separation should be withheld pending outcome of the appeal or until the time for appeal has passed.  The member may be separated prior to final action on appeal upon his or her request or upon direction of the Secretary of the Navy (SECNAV).

c.  Members confined in a foreign penal institution may be processed for separation, but may not be discharged or separated from the service until the completion of imprisonment and return to the United States.  In unusual cases, (i.e., life sentence without possibility of parole) such discharges or separations may be authorized by SECNAV by Reason of Best Interest of the Service (see Article 3630900).  SECNAVINST 5820.4 refers.

d.  Members must be dual or multiple processed where appropriate, (i.e., members processed for misconduct due to civil conviction must also be processed (dual) for misconduct due to commission of a serious offense if the offense for which convicted could warrant a punitive discharge).  Exceptions:  Misconduct involving only preservice, prior service, or current service homosexuality shall be processed only under Article 3530400.  Misconduct involving only drug abuse (civil or military) shall be processed only under Article 3630620.

e.  Members may be processed for separation by reason of misconduct for offenses which occur preservice or in a prior enlistment, provided the misconduct was unknown to the Navy at the time of enlistment or reenlistment and processing for fraudulent enlistment is inappropriate.  Under these unusual circumstances, Notification procedures (see Article 3640200) shall be used as the least favorable characterization of service possible for offenses which occur prior to entry into active duty or in prior enlistment is General.

f.  Officers exercising special court-martial convening authority are delegated authority (see Article 3610220) to separate members only if an Administrative Board recommends separation with a General or Honorable discharge, the member does not object to the discharge, and that characterization is consistent with guidance in Article 3610300.  In cases where member objects to separation, CHNAVPERS (Pers-83) is Separation Authority.  Regardless of an Administrative Board's recommendation, CHNAVPERS is Separation Authority for members being separated by reason of misconduct due to commission of a serious offense as evidenced by sexual perversion or sexual harassment.

g.  Forward processed case by letter of transmittal to Pers-83.  Ensure member's full name, rate, and SSN have been indicated on each page of the case.  In those cases where the commanding officer effects the separation, indicate date and characterization of separation awarded.  Refer to Article 3640200.11 for message submission option in those cases where member waives an Administrative Board, the commanding officer does not have authority to effect separation, or member objects to separation.