Author: CAP
Last saved by: shirley.robertson
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Docket No. ND04-01262

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

ex-EMFN(SW), USN
Docket No. ND04-01262

Applicant’s Request

The application for discharge review was received on 20040806.  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 20041105.  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 1910-144 (formerly 3630610).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Dear Sirs:

My discharge was inequitable because it was based on one isolated incident in 17 years of service in the Navy.  As you can see from the attached DD 214’s, I had three honorable discharges prior to my last discharge.

I was convicted of a civilian offense, but if you read the entire testimony, you will see where I was falsely charged.  I had a civilian attorney who told me if I pled guilty to a lesser charge, I would be able to stay in the Navy and continue my military career.  I pled guilty to a misdemeanor.  I had been told that if I did not return to my duty station in thirty days, I would be charged with desertion and discharged.  I pled guilty to the lesser charge to get out of jail so that I could return to duty.  After pleading, I was told that I was being discharged anyway.

The testimony in the attached papers will state that the incident did not happen, but I was trying to save my career so I pled guilty.

I am requesting that you review the testimony and if necessary review my previous service record to see that I had never been charged with any offense before this time.  I had three good conduct medals.  Please upgrade my discharge to Honorable or at least General Under Honorable Conditions.

Please contact me if you need additional information.

Thank you for your assistance.

Sincerely,
D_ W_ W_ (Applicant)”

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	740901 - 740922	COG
	Active:   USN 			740923 - 780105	HON
					780106 - 831106	HON
					831107 - 881103	HON

Period of Service Under Review:

Date of Enlistment:  880923		Date of Discharge:  911009

Length of Service (years, months, days):

	Active:    13  11  28
	Inactive:  None

Age at Entry:  33			Years Contracted:  3

Education Level:  12			AFQT:  No Score Found in Record

Highest Rate:  EMFN (SW)

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.9 (8)	Behavior:  3.9 (8)		OTA:  3.90

Military Decorations:  None

Unit/Campaign/Service Awards:  ESWB, NCM, NAM, NUC, NER, GCM (3), AFEM, NDSM  (2), SSDR, CGSOR

Days of Unauthorized Absence:  26

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 1910-144 (formerly 3630610).

Chronological Listing of Significant Service Events:

880923:	Applicant reenlisted for 3 years.

901217:	Retention Warning:  Advised of deficiency (failure to pay legal obligations), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

910207:	Civil Conviction in Virginia Beach Juvenile and Domestic Relations District Court , Virginia Beach, VA.
Charge 1. Rape
Charge 2. Indecent Liberties With a Child.
Sentence: 
Charge 1.  Nolle Prosequi.
Charge 2.  12 months in jail all but 60 days suspended to be given credit for time served and good behavior.

910213:	 NJP for violation of UCMJ, Article 86:  Unauthorized absence, in that EMC D_ W_ W_ , did, on or about, 0800, 15 January 1991, without authority, absent himself from his unit, to wit, Transient Personnel Unit, Norfolk, VA, and did remain so absent until on or about 1522, 10 February 1991. (A period of about 26 days).  
Award:  Forfeiture of $100 per month for 2 month(s), restriction for 30 days.  No indication of appeal in the record.

910329:	Applicant released to Norfolk Police Department for trial upon the charge of four felony warrants for bad checks (total $1,064.81). 

910528:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civil conviction as evidenced by service record entries. 

Not Dated:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

910722:	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.

910723:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to civil conviction

910997:	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 19911009 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 Applicant contends that he his discharge was inequitable because it was based on one isolated incident in 17 years.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An Under Other Than Honorable Conditions discharge 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 a nonjudicial punishment proceeding for violation of Articles 86 (26 days UA) of the UCMJ and a conviction in civilian court.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The statements and documents provided by the Applicant do not refute the presumption of regularity in this case.  The Applicant pled guilty and was convicted by a civilian court for the offense of indecent liberties with a child.  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 action.  Relief denied.

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), Change 33 effective 
9 Jul 01 until 21 Aug 02, Article 1910-144 (previously 3630610), Separation by Reason of Misconduct - Civilian Conviction. 

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.