Author: CAP
Last saved by: Department of the Navy
Company: NCPB

Docket No. ND01-00844

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

 ex-TMSN, USN
Docket No. ND01-00844

Applicant’s Request

The application for discharge review, received 010611, 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.  Subsequent to the application, the applicant obtained representation by the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020110.  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 - convicted by a civil court for offense(s) occurring during current term of military service, authority: MILPERSMAN, Article 3630600.  Discharged in absentia.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I was not properly respesentive by the military lawyer that was assigned to my court-martial discharge.  The command did not consider my wife substance abuse problem, and my pending divorce.  Receiving "an other than honorable discharge" was not basic on my military service which was "Honorable".  My mistake was to pled "no contest".  If I knew that I was to be sentence jail time on the charge 273.5(A).

2.  After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to note the contentions as set forth on the application by the appellant of an upgrade of his current Under Other Than Honorable Conditions discharge to that of General, Under Honorable Conditions
The record reflects the FSM served in the United States Navy from July 4, 1987 to May 4, 1990, at which time he was discharged as noted above.  Additionally, the FSM serve active service prior to this beginning December 18, 1981 to July 3, 1987, during which time he received two good conduct medals for this service period.  The FSM requests equitable relief in the manner as noted above, he believes the discharge currently held is unfair and given without due consideration to his previous good service and high proficiency marks.  It is the understanding of this agency that prior military service and type of discharge received or outstanding post service conduct to the extent that such matters provide a basis for a more thorough understanding of the performance of the applicant during the period of service which is the subject of the discharge review.  See, SECNAVINST 5420.174C, 9.3.  As the representative this service requests consideration be given to equitable relief in the form of a General Discharge, Under Honorable Conditions, as the current material on file show periods of good military service, a strong family structure developed by the FSM, who continues to work full time to support his family and be a productive member of society.  With all this in mind, we believe that strong consideration should be given to the upgrade of this particular discharge request to that of General Under honorable Conditions. We ask for the Board's careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.

Documentation

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

Letter from applicant dated April 30, 2001
Copy of transcript from Southeast Regional Occupational Program dated May 21, 2001
Copy of criminal history summary
Letter from applicant's wife dated May 20, 2001
Character reference
Letter from applicant's stepdaughter
Letter from in-law
Copy of DD Form 214 (current enlistment)
Copy of DD Form 214 (previous enlistments)

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		780417 - 811217	HON
		   USN			811218 - 870703	HON
	Inactive: USNR (DEP)	780413 - 780416	COG

Period of Service Under Review:

Date of Enlistment:  870704		Date of Discharge:  900504

Length of Service (years, months, days):

	Active:    02  10  01
	Inactive:  None

Age at Entry:  31			Years Contracted:  4

Education Level:  13 1/2		AFQT:  62

Highest Rate:  TM1

Final Enlisted Performance Evaluation Averages (number of marks):

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

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM (2), MUC (3), SSDR, NEM, AFEM

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct -convicted by a civil court for offense(s) occurring during term of military service, authority: MILPERSMAN, Article 3630600.  Discharged in absentia.

Chronological Listing of Significant Service Events:

890825:	NIS report found on microfiche.

891115:	Civil Conviction:  Superior Court of California, San Diego for violation of inflict corporal injury of spouse on 22Jul89.
Sentence: Fine $200.00, jail for 270 days.  Five years formal probation.

900130:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a commission of a serious offense and misconduct due to civilian conviction as evidenced by civilian court documents.

UNDATED:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.  No selections made.

900326:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to a civil conviction, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

900416:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to civil conviction.  Commanding officer’s comments (verbatim): TM1 (applicant's) behavior has been inexcusable for a member of the naval service.  His history of spousal abuse spans the past six years, during which time he has been involved with the family advocacy program.  He was rejected from that program because he has been unable to modify his behavior to acceptable standards.  The latest incident involved assault and battery upon his spouse, inflicting an injury to her which required surgery at Naval Hospital San Diego for correction.  In addition, he was convicted of a felony pursuant to the laws of the state of California and is required to spend 270 days in the custody of the sheriff as a condition of probation.  The recommendation of the board to discharge TM1 (applicant) with a characterization of other than honorable receives my strongest endorsement.

900501:	CNMPC directed the applicant's discharge under other than 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 900504, in absentia, under other than 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).

Issue 1.   The Board found no inequity or impropriety in the administrative discharge proceedings. The Board found that the applicant’s difficulties with his former spouse do not mitigate the applicant’s conviction in civilian court for inflicting corporal injury. 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 service was marred by his conviction in civilian court for a serious offense.  Relief denied.

Issue 2.  The Board found no inequity in the fact that the applicant’s service was honorable prior to the conviction in civilian court, but that the applicant was discharged under other than honorable conditions. The applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  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, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560A, Change 8, effective 
21 Aug 89 until 14 Aug 91) Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT.

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/A01039/A9307/A9217/A9203/A9221