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

ex-HTFN, USN
Docket No. ND01-00131

Applicant’s Request

The application for discharge review, received 001108, requested that the characterization of service on the discharge be changed to Honorable.  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 010406.  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

1.  My discharge was inequitable because I was never charged with a crime under the UCMJ.

2.  My discharge was inequitable because I was led to believe that I was going to be allowed to finish my enlistment honorably and discharged differently within days of doing so.

3.  My discharge was inequitable because it was based on one incident in nearly sixty (60) months of faithful and honorable service.

4.  My discharge was inequitable because at the time of my discharge I had earned the difference from the date of discharge to my actual EAOS in days of leave.  I could have been on terminal leave hence in my mind I completed my enlistment honorably.

5.  I would like the Board to consider that I believe that my service record speaks for itself in determining the type of sailor I was.  I am ashamed after all I have done to not have the ability to say that I am an honorably discharged vetern which is very important to me.  I did not wish to separate from service and would be proud to still be serving to this day.  I would also like to point out that the crime for which I was separated was accidental and not a deliberate act.  Thank you.

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	900112 - 900318	COG

Period of Service Under Review:

Date of Enlistment:  900319		Date of Discharge:  950303

Length of Service (years, months, days):

	Active:    04  11  13
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (12 months extension)

Education Level:  12			AFQT:  42

Highest Rate:  HT3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.63 (7)	Behavior:  2.63 (7)		OTA:  3.69

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, AFEM (2), BER, SSDR (3), SASM (2), JMUC, GCM, NAM

Days of Unauthorized Absence:  None

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:

920722:	Retention Warning:  Advised of deficiency (a. Substandard performance in the case of alcohol abuse incident, b. Misconduct in the case of alcohol abuse incident, c. Misconduct in the case of drug abuse incident), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

930930:	Message: Motor vehicle accident involving passenger fatality.  Bond hearing held at 1300, 30 Sep for applicant.  Bail set at 50K dollars and preliminary hearing scheduled for 1015, 15 Oct in the criminal division of the VA Beach General Circuit Court.  Applicant currently charged with involuntary manslaughter, and is being held at VA Beach correctional center.

940408:	Message: Applicant arraigned on 01OCT93 on the charge of involuntary manslaughter on 09SEP93.  First court hearing was scheduled for 4Feb94.  Rescheduled to 25FEB94 due to witness no show.  On 25FEB94, judge referred case to circuit court.  Attorney inform applicant of new trial date of 29 Jun.

950202:	Official notification from applicant: I am writing this to officially inform you that I, Hull Maintenance Technician Third Class, USN (social number deleted) (applicant), did in fact plead guilty to the crime of Involuntary Manslaughter, an offense that was committed on 29 September 93.  I entered my plea of guilty in a plea bargain situation on 1 January 1995 in the Circuit Court of Virginia Beach.

950206:	Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense as evidenced by a guilty plea of involuntary manslaughter entered in Virginia Beach Circuit Court.

950206:  	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.

950210:	Civil Conviction:  Applicant pled guilty of involuntary manslaughter.  Entered in Virginia Beach Circuit Court. [Extracted from the CO’s msg dated 101335Z FEB 95.]

950217:	Commanding officer recommended discharge General (under Honorable conditions) by reason of misconduct due to the Commission of a serious offense.  Commanding officer’s comments (verbatim): I have no doubt that HT3 (applicant) did commit misconduct due to a commission of a serious offense and that such conduct has no place in the U.S. Navy.  However, I feel that HT3 (applicant) has shown great remorse for the consequences of his actions.  Also, his plea bargain agreement states that he will serve at least 6 months in jail.  Based on his past performance, and the factors listed above, I strongly recommend that he be separated from the Naval Service with a General Discharge.

950225:	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 950303 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).

Issue 1.  The applicant states his discharge was inequitable because he was never charged with a crime under the UCMJ.  The applicant was discharged for Commission of a Serious Military or Civilian Offense (separation code HKQ).  Involuntary manslaughter is a violation of the UCMJ, Article 119.  Therefore, his discharge was proper and equitable.  Relief denied.

Issue 2.  The applicant states his discharge was inequitable because he was led to believe he was going to be allowed to finish his enlistment honorably and discharged differently.  The applicant did not provide any evidence nor is there any evidence in his service record to support the allegation stated in this issue.  Therefore, the Board determined the discharge was proper and equitable.  Relief denied.

Issue 3.  The applicant states his discharge was inequitable because it was based on one incident in 60 months of faithful and honorable service.  The Board agrees the applicant has one active duty misconduct incident, however, that incident was involuntary manslaughter, which is a serious offense.  Relief denied.

Issue 4.  The applicant states his discharge was inequitable because he could have been on terminal leave.  The applicant had a hearing 9/30/93 for a motor vehicle accident involving a passenger fatality.  His discharge did not occur until 02/17/95.  having the option to be on terminal leave has no bearing on the characterization and reason for discharge.  The Board determined, this issue has no merit.  Relief denied.

Issue 5.  The applicant states, the crime that he committed was an accident and not a deliberate act, and that his record speaks for itself.  The applicants average grades ere below average and would not automatically rate an Honorable discharge.  The Board determined, this issue has no merit.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 
22 Jul 94 until 02 Oct 96, 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