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

ex-ENFN, USN
Docket No. ND04-00595

Applicant’s Request

The application for discharge review was received on 20040225.  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.  Subsequent to the submission of DD Form 293, the Applicant designated Veterans of Foreign Wars to act as his representative.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222.  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 3-2 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.   “I would like to say with all do respect that I appreciate the review of my case.  I have enclosed a copy of my DD-214.  This separation came after a tragic fatal accident of my bride of one week.  I was on my second enlistment when this had happened.  I had no captain mast.  When I returned to my command they ask me if I wanted to stay in or go home.  My mind was very, disturbed after the loss of my wife.  I still am in treatment and have once again, started to care about life.  I love my country and had planned to make the navy a career.  If there is anything else I could do to have my second discharge upgraded would younz please send me the info.
[also added last set of evals]
Please inform me if I am eligible for any medical benefits.  IF younz need any information on anything, please contact myself at [address and phone].”

Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS):

2.  “EQUITY ISSUE:  Based on our review of the evidentiary record and on behclaf of this former member, we request the Board consider provisions of SECNAVIST 5420.174C, enclosure (1) 9 9.3(1) (B), as it pertains to the former members past enlistment.  

The former member is requesting an upgrade to a General under Honorable Condition.  We ask for a full review of the facts and circumstances that may qualify the former member to any benefit or relief.

To that end, we rest assured that the NFRB’s final decision will reflect sound equitable principles consisted in law, regulation, policy and discretion as promulgated by 10 V.S.C. section 1553, and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C, enclosure (1).”

Documentation

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

Copy of DD Form 214 (2)
Evaluation from 920407

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	860828 - 870106	COG
	Active:   USN 			970107 - 900722	HON

Period of Service Under Review:

Date of Enlistment:  900723		Date of Discharge:  920512

Length of Service (years, months, days):

	Active:    01  09  19		[does not exclude lost time]
	Inactive:  None

Age at Entry:  22			Years Contracted:  6

Education Level:  12			AFQT:  24

Highest Rate:  EN3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.80 (1)	Behavior:  3.80 (1)		OTA:  3.80

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM, NDSM, SSDR (2), 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.

Chronological Listing of Significant Service Events:

920317:	Medical Evaluation:  AXIS I:  Alcohol dependence, adjustment disorder with mixed disturbance of emotion and conduct.

910429:	Civil Conviction:  [Municipal Court, San Diego] for violation of Drive a vehicle under the influence of alcohol.
Sentence:  $939, 180 days confinement suspended for 5 years, complete first conviction program, 90 days restricted driving privileges, to participate in Public Service for 29 days in lieu of fine.

910520:	Retention Warning:  Advised of deficiency (civil conviction for driving under the influence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

910808:	Applicant completes outpatient rehabilitation.

911117:	Apprehended in San Diego, CA. on charge of murder.

911118:	Applicant to UA.

920316:	Applicant from confinement and to military control.

920304:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civil conviction as evidenced by your Superior Court, San Diego, California conviction Involuntary Manslaughter of 10 February 1992.

920324:	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.

920316:	Applicant sentenced to $500.00 fine, three years probation.

920410:	Commanding Officer recommended a general discharge by reason of misconduct due to civil conviction.  Commanding Officer’s comments:  [Characterization of service under Other than Honorable Conditions is not warranted, therefore I recommend [Applicant] be separated from the naval service with a discharge characterized as General.]

920505:	BUPERS 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 19920512 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).

Issues 1-2.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s service record is marred by civil convictions for driving under the influence and involuntary manslaughter, thus substantiating the misconduct for which he was separated.  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 consider his discharge proper and equitable.  Relief denied.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient documentation for the Board to consider.  Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023