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Docket No. ND04-01462

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

, ex-FCSN, USN
Docket No. ND04-01462

Applicant’s Request

The application for discharge review was received on 20040921.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to “convenience of the government”.  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 20050201.  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 and the reason for 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 respectfully request an upgrade of my UOTH conditions discharge to an Honorable or whatever other characterization this Board sees fit, say General/Under Honorable conditions, as I was administratively separated due to a civil conviction.

2.  My discharge was inequitable, in that it was based upon one incident in 51 months of active duty service, with an additional 4 months in the Delayed Entry Program, with no other adverse actions.

3.  My enlistment was made in error, in that I had a severe handicap(stuttering)that greatly held me back in my line of duty.

4.  I apparently had or contracted mental illness at the time I enlisted or after I enlisted.  This went undetected for years, and should’ve been noticed during my enlistment evaluation.  

5.  I should”ve gotten a medical discharge because I wasn’t medically qualified to serve.

6.  Unidentified psychiatric problems greatly impaired my ability to serve.”
 
Issues submitted by Applicant’s counsel/representative (Veteran’s Service Organization):

The Board has not received any correspondence from the Applicant’s representative.

Documentation

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

Applicant’s DD Form 214 (2)
Copy of VA form 21-22 (2 pages)
Copy of  Applicant’s service record (15 pages)
Letter from W_ C. T_
Letter from Applicant’s mother
Letter from Applicant (13 pages)
Copy of Applicant’s medical records (35 pages)
VA Form 21-4142 (4 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	900614 - 901104	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  901105		Date of Discharge:  930204

Length of Service (years, months, days):

	Active:    02  03  00
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  42

Highest Rate:  FC3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  *NMA	Behavior:  NMA		OTA:  NMA

Military Decorations:  None

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

Days of Unauthorized Absence:  None
*No Marks Available

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:

920916:	Civil Conviction:  [Superior Court of California] for sexual molestation.
Sentence:  Custody of the sheriff custody for 180 days and adult institution recommended, fined $100.00, restitution of $526.00, attend therapy as directed by probation officer (sentence suspended for 3 years).

930104:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civil conviction.

930104:	Applicant advised of 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.

930113:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to civil conviction.

930125:	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 19930204 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 1-6:  The Applicant states his discharge was based on one isolated incident in “51 months.”  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 conviction for sexual molestation, thus substantiating the misconduct for which he was separated.  The civilian conviction warranted processing for separation under other than honorable conditions.  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 his discharge proper and equitable.  The summary of service clearly documents that misconduct due to civilian conviction was the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  The evidence of record does not prove that the Applicant was not responsible for his misconduct and should not be held accountable for his actions, and the NDRB found that the Applicant's service was equitably characterized.  Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB).  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits and this issue does not serve to provide foundation upon which the Board can grant relief.  

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

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.