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

ex-ASAN, USN
Docket No. ND04-00587

Applicant’s Request

The application for discharge review was received on 20040227.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  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 20041001.  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 - Convicted by a civil court for offense(s) occurring during current term of military service, 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 upgraded discharge to a General if possible to avoid hardship upon my wife & son based on a possible deportation from the United States.”

Documentation

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

Copy of Certificate of Completion (Petty Officer Indoctrination Course) 
Copy of Certificate of Appointment (Third Class Petty Officer)
Copy of Third Class Petty Officer Authorization Letter
Copy of Certificate of Completion (NADSAP) Letter
Copy of Certificate of Appointment (Second Class Petty Officer)
Copy of Second Class Petty Officer Authorization Letter
Copy of Good Conduct Award
Copy of Honorable Discharge Certificate
Copy of Certification of Military Service
Copy of VA Referral
Copy of Certificate of Reenlistment
Copy of DD Form 214
Change of Address Letter

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	860719 - 860819	COG
	Active:   USN 			860820 - 900730	HON

Period of Service Under Review:

Date of Enlistment:  900731		Date of Discharge:  920918

Length of Service (years, months, days):

	Active:    01  06  21 (Includes UA and in hands of civilian authorities)
	Inactive:  None

Age at Entry:  24			Years Contracted:  5

Education Level:  12			AFQT:  39

Highest Rate:  AS2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.66 (3)	Behavior:  3.66 (3)		OTA:  3.66

Military Decorations:  None

Unit/Campaign/Service Awards:  GCA, HSM, SSDR, NDSM

Days of Unauthorized Absence:  30

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.

Chronological Listing of Significant Service Events:

900731:	Reenlisted onboard USS PELELIU for 5 years.

920201:	Apprehended by civilian authority on charges of possession of cocaine for sale, transportation of cocaine for sale.

920304:	Returned to military control 92MAR04.  Applicant not confined for safekeeping. 

920324:	Arrested by civilian authorities on charges of possession of cocaine for sale, transportation of cocaine for sale.

920515:	Plead guilty to conspiracy charge under personal circumstances and induced for the plea agreement [Extracted from Medical Record].

920724:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civil conviction as evidenced by your plea of guilty to the charge of conspiracy to distribute five kilograms, or more of cocaine.

920731:	Applicant advised of his rights and having elected 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.

920731:	Civil Conviction:  [Jacksonville, FL] for conspiracy to distribute five kilograms or more of cocaine.
Sentence:  180 months imprisonment, and upon release from imprisonment, five years supervised release.

920819:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to civil conviction.

920909:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to civil conviction.

920918:	Discharged in Absentia per BUPERS Washington DC message, 091913Z SEP 92.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged in absentia on 19920918 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:  A characterization of service of under other than 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 conspiracy to distribute five kilograms or more of cocaine.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The Board has no authority to upgrade a discharge for the sole purpose of avoiding family hardship or deportation 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.   

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, a drug free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   At this time, the Board determined that the documentation submitted by the Applicant does not mitigate his misconduct while on active duty.  

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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C, effective 15 Aug 91 until 04 Mar 93), 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 “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