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Docket No. ND03-00482

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

 ex-ETSN, USN
Docket No. ND03-00482

Applicant’s Request

The application for discharge review was received on 20030127.  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: UNDER OTHER THAN 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.  “Respectfully request an upgrade due to type of discharge was based on a civilian offense.  Having completed the requirements and conditions of the civilian courts, my charges were dismissed and all civil rights were restored (see attachment).  Since my discharge & type of discharge was based upon the civilian offense (line item 28, DD 214), & that civilian offense has been dismissed I respectfully request a review & upgrade of my discharge.”

Documentation

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

Applicant’s DD Form 214
Order of dismissal and discharge from District Court of the Seventh Judicial District of the State of Idaho, dated April 14, 2001

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	861222 - 870428	COG
	Active:   USN			870429 - 910425	HON

Period of Service Under Review:

Date of Enlistment:  910426		Date of Discharge:  940711

Length of Service (years, months, days):

	Active:    03  02  16
	Inactive:  None

Age at Entry:  23			Years Contracted:  5

Education Level:  11 GED		AFQT:  91

Highest Rate:  ET1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (6)	Behavior:  3.67 (6)		OTA:  3.57

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, NUC, GCM

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:

910426:	Applicant reenlisted for 5 years.

940107:	Applicant arrested Idaho Falls Police for felony injury to a child on 931221.

940413:	Retention Warning:  Advised of deficiency (Complaints of late payments for combined maintenance and child support as stipulated in a court order in the District Court of the Seventh Judicial District of the State of Idaho, County of Bonneville.  Further delinquency in payment of combined maintenance and child support while stationed at NPTU Idaho Falls, ID will result in disciplinary action.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
	
940413	Applicant plead guilty to felony injury of a child.

940607:	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 civilian conviction.

940607:	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.

40616:	Civil Conviction: District Court of the Seventh Judicial District of the State of Idaho for violation of felony injury to a child.
Sentence: Five months in jail, fine $5,000.00, community service for 300 hours, probation for 10 years and no visitation rights with his children

940617:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments (verbatim):  [Due to the nature and severity of this offense, I feel petty officer M_ (Applicant) cannot become a viable member of the Navy.  I recommend discharge with other than honorable conditions in the most expeditious manner possible.  Petty officer M_ is not recommended for any further military service.]

940624:	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 19940711 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:  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor.  The Applicant plead guilty to committing a felony injury to his five month old daughter resulting in cerebral hemorrhaging and partial paralysis.  The commission of this offense clearly demonstrated he was unsuitable for further service.  The Court’s later administrative dismissal of the charge does not alter the fact that the offense was committed.  Applicant’s separation for commission of a serious offense was, therefore, proper and will not be overturned.  An upgrade to honorable would be extremely inappropriate.  Relief denied.

The NDRB noted an administrative error on the original DD Form 214.  Block 18 did not reflect the Applicant’s previous four years of honorable service.  The Board notified Commander, Naval Personnel Command, Millington, TN and recommended the DD Form 214 be corrected or reissued.   

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, 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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