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Docket No. ND02-00828

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

 ex-ETSN, USNR (TAR)
Docket No. ND02-00828

Applicant’s Request

The application for discharge review was received on 20020520.  The Applicant requests the 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031229.  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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  The reason for my general (under honorable conditions) discharge was due to an isolated unfortunate incident.  It has been almost ten years since, with no related problems or issue.  I would like to have my discharge changed to honorable for the purpose of using the G.I. Bill.  I now have a family and would like to be able to provide for them the way I think they deserve.  That would help me continuing my education so I can provide a better life for my family.”

Documentation

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

Letter from Applicant
Copy of DD Form 214
Copy of DD Form 215
Service Related Information Listing from Applicant dated November 16, 2002 (2)
Copy of DD Form 215
Status Request Letter from Applicant to NDRB

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	None
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  890424		Date of Discharge:  940222

Length of Service (years, months, days):

	Active:    04  09  29
	Inactive:  00  02 00

Age at Entry:  18			Years Contracted:  8 

Education Level:  12			AFQT:  60

Highest Rate:  ET3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (4)	Behavior:  3.55 (4)		OTA:  3.70

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

890424:	Commenced 48 months of active duty in the TAR program.

900206:	NJP for violation of UCMJ, Article 92: Failed to obey a lawful general order by introducing alcohol and consuming alcohol in the Helm Club while under the age of 21 years.
	Award:  Forfeiture of $100.00 pay per month for 1 month, restriction and extra duty for 12 days.  No indication of appeal in the record.

910314:	NJP for violation of UCMJ, Article 134: (2 Specifications), Spec 1: Was on or about 910117 at Donnelly Hall, BLDG 3362 Naval Station San Diego drunk and disorderly, which conduct was of a nature to bring discredit upon the Armed Forces; Spec 2: Was on or about 910213 as a result of wrongful previous overindulgence in intoxicating liquor or drugs, incapacitated for the proper performance of his duties.
	Award:  Forfeiture of $439.00 pay per month for 1 month, restriction to SSC/NTC for 30 days, extra duty for 30 days, reduction to E-3.  No indication of appeal in the record.

920206:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
	Award:  Forfeiture of $350.00 pay per month for 1 month, restriction for 7 days.  No indication of appeal in the record.

930424:	Extended on active duty for 24 months.
 
931023:	Civil Conviction:  [Santa Anna Superior Court] for violation of Penal Code 192 (c(3)) Driving Under the Influence Involving Manslaughter.  Charge 2: Vehicle Code 23153 (a) Driving Under the Influence of Alcohol or Drugs Involving Bodily Injury.  Vehicle Code 23153 (b) Driving Under the Influence with a BAC above 0.08 with bodily Injury.
Sentence:  940121: 1 year in jail.

931223:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civilian conviction and commission of a serious offense as evidenced by your conviction in Santa Anna Superior Court on 930925 of the following charges: Charge 1: Penal Code 192 (c(3)) Driving Under the Influence Involving Manslaughter.  Charge 2: Vehicle Code 23153 (a) Driving Under the Influence of Alcohol or Drugs Involving Bodily Injury.  Vehicle Code 23153 (b) Driving Under the Influence with a BAC above 0.08 with bodily Injury.

931223:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

931223:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense, that the misconduct warranted separation, and recommended discharge general (under honorable conditions.)

940110:	Commanding Officer recommended discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense and civilian conviction.

940210:	BUPERS directed the Applicant's discharge general (under 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 in absentia 19940222 with a characterization of general (under 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:  A characterization of general (under honorable conditions) is warranted when the member’s conduct constitutes a significant departure from that expected of a Sailor.  The Applicant’s service was marred by a civilian conviction for DUI involving manslaughter.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls short of that required for an honorable characterization of service.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing educational benefits as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.   Relief denied.  

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, a positive employment record, an alcohol-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   

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 additional documentation to support any claims of post-service accomplishments 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), 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

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.
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