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Docket No. ND01-00259

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

ex-FC2, USN
Docket No. ND01-00259

Applicant’s Request

The application for discharge review, received 010103, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010808.  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:  GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-144 (formerly 3630610).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  (Equity Issue)  Aside from the isolated incident in which his exercise of poor judgement resulted in a civil conviction, this former member opines that his overall service record supports a fully honorable discharge.

2.  (Equity Issue)  This former member requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation

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

California All-Purpose Acknowledgement
Copy of DD Form 214
Letter from Applicant (2pgs)
Copy of Student Unit Load Verification
Printout of College Schedule
Character Reference Letter
Letter of Recommendation
Employment Reference Letter
Copy of Citation (Outstanding Performance)
Probation Compliance Letter
Copy of Transcript from San Diego Community College
College Confirmation of Classes for Spring of 2001

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		None
	Inactive: USNR (DEP)	930719 - 930727	COG

Period of Service Under Review:

Date of Enlistment:  930728		Date of Discharge:  990128

Length of Service (years, months, days):

	Active:    05  06  01
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  99

Highest Rate:  FC2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (2)	Behavior:  2.50 (2)		OTA:  2.70

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, OSR, NAVY"E"(2), GCM, AFEM, NAM 

Days of Unauthorized Absence:  None 

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MILPERSMAN, Article 1910-144 (formerly 3630610).

Chronological Listing of Significant Service Events:

981028:	Civil Conviction:  [Superior Court of California of Riverside] for violation of California Penal Code 245 (a) (1) Assault with a deadly weapon, not a firearm and Vehicle Code VC23252 (B) Driving under the influence with a .08% BAC or more.
Sentence:  Formal probation for 3 years, serve 120 days in county jail on weekends beginning 981030, pay fine of $1103.00 at $50.00 a day, pay booking fee of $110.00, pay restitution fine of $200.00, pay administrative fee of $30.00, report to Financial Services within two days of release of custody, not to drive with alcohol in blood, enroll within five days and complete drinking driver Program AB541, submit to chemical test of your blood, urine, or breath, and submit to search of person and property with or without reasonable cause by any law enforcement or probation officer, and ordered not own, possess, or have control of a firearm.

981221:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civil conviction.

981221:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

990115:	Commanding officer authorized applicant discharge general under honorable conditions by reason of misconduct due to civil conviction. 

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 990128 general under honorable conditions for misconduct due to civil conviction (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 applicant’s representative submitted the following as issue 1: (Equity Issue)  Aside from the isolated incident in which his exercise of poor judgement resulted in a civil conviction, this former member opines that his overall service record supports a fully honorable discharge.  The applicant implies that a permissive doctrine exists whereby one in the military is allowed an "isolated incident".  The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record.  No such leniency exists in the military.  The applicant is responsible for his actions and must accept the consequences of his misdeeds.  The Board will not grant relief on the basis of this issue.

The applicant’s representative submitted the following as issue 2: (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV).  However, 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 the civilian life subsequent to leaving the service.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, can be considered.  In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships.  In reviewing the applicant’s post service, the Board was impressed with the efforts he has begun to make in attempting to recoup his reputation which has been sullied by his misconduct in the Navy.  NDRB experience has shown that applicants with less than five years sobriety usually have not had sufficient opportunity to demonstrate continuing, positive contributions to society.  Therefore, relief will not be granted at this time.  The applicant is reminded that he remains eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at a personal appearance hearing is highly recommended.  The possibility of favorable action in the applicant’s case will increase with the amount of time he maintains an alcohol and drug free lifestyle.  Verifiable documentation of such a lifestyle is essential.  The applicant is encouraged to continue his community service, remain sober, and apply for a personal appearance hearing prior to 28 January, 2014. 

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 21, effective 01 Sep 98 until 15 Sep 99, Article 1910-144 (previously 3630610), Separation by Reason of Misconduct - Civilian Conviction.

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 “afls10.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

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6100/A9217/A9221