Author: CAP
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Docket No. ND05-01212

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

FOR OFFICIAL USE ONLY

 ex-YNSN, USN
Docket No. ND05-01212

Applicant’s Request

The application for discharge review was received on 20050712.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060209.  
After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety in the discharge action but did discern an inequity in the characterization of the Applicant’s service.  The Board’s vote was unanimous that the character of the discharge and the reason for discharge shall change to: HONORABLE SECRETARIAL AUTHORITY, authority: MILPERSMAN 1910-164, Separation Code “JFF.”

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application: 

“I was separated for misconduct before my trial began.  I was found innocent of the charges and request you upgrade my discharge to honorable.”

Applicant’s Remarks:  (Taken from the DD Form 293): “I feel I was wronged by being discharged prior to my civil proceedings.  I really wanted to stay in the navy.”

Documentation

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

Applicant’s DD Form 214
Trial Order from the Circuit Court of the City of Norfolk, dtd November 6, 2003 (2 pgs)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19991115 – 20000709		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20000710		Date of Discharge:  20030530

Length of Service (years, months, days):

	Active:    02  10  20  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  17 (Parental Consent)

Years Contracted:  4 

Education Level:  12				AFQT:  39

Highest Rate:  YNSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.0 (3) 		Behavior:  3.0 (3) 		OTA:  3.55 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy Unit Commendation, Meritorious Unit Commendation, National Defense Service Medal, Armed Forces Expeditionary Medal, Sea Service Deployment Ribbon.

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events: 

030301:	Applicant arrested by the Norfolk Police Department and charged with (1) Robbery Virginia Code 18.2-58 and (2) use of a firearm in the commission of a felony Virginia Code 18.2-53.1 [Extracted from CO’s message].

030305:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to commission of a serious offense.

030305:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

030502:	Commanding Officer, USS ENTERPRISE (CVN-65) recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.  Commanding Officer’s comments:  “On 1 March 2993, YNSN G_ (Applicant) was arrested for robbery and use of a firearm in commission of a felony.  On 7 March 2003, YNSN G_ (Applicant) requested an administrative discharge board.  On 26 March, re-elected to waive his rights to an administrative discharge board.  After careful consideration of the facts of his alleged charges, I believe that YNSN G_ (Applicant) committed the offenses alleged.  The seriousness and gravity of his misconduct indicates he does not have potential for further naval service and brought discredit upon the U.S. Navy.  Accordingly, I recommend that YNSN G_ (Applicant) be discharged from the naval service for misconduct due to commission of a serious offense with a characterization of Other Than Honorable.”

030522:	COMCRUDESGRU TWELVE directed the Applicant's discharge under other than honorable conditions by reason of misconduct commission of a serious offense.

031106:	Civil Conviction:  Circuit Court of the City of Norfolk for violation of Virginia Code Section 18.2-58, Robbery and Virginia Code Section 18.2-53.1, Use of firearm in the commission of a felony.
Sentence:  Found not guilty of both charges [Extracted from case file].

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030530 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of under other than honorable conditions.  After review of the Applicant’s service record and other evidence presented to the NDRB, in conjunction with consideration of the factors listed in paragraph 9.3 (A), the Board determined that relief is warranted under equitable grounds even though the discharge was determined to have been otherwise proper and equitable (C and D) at time of issuance.

The Applicant states, “he was wronged by being discharged prior to my civil proceedings.  I really wanted to stay in the navy.”  Processing is mandatory for violent misconduct, which resulted in or had potential to result in death or serious bodily injury (e.g., homicide, arson, armed robbery, assault with a deadly weapon).  Applicable regulations permit commanding officers, in certain types of serious misconduct, even though alleged, to make a determination as to the potential for further naval service for service members under their charge.   In the Applicant’s case, the Commanding Officer recommended that the Applicant be separated under other than honorable conditions for misconduct due to commission of a serious offense, and the discharge authority (COMCRUDESGRU TWELVE) approved that recommendation.  The Board found that there was no impropriety in discharging the Applicant prior to resolution of his civilian proceedings.  Relief on this basis is denied.

After a review of the Applicant’s service record and evidence presented to the NDRB from the Trial Order from the Circuit Court of the City of Norfolk, the NDRB determined that relief is warranted based on equity. The record of trial showed that a judge heard the case, that no evidence was suppressed, and that the Applicant was exonerated for both Civil Conviction charges (violation of Virginia Code Section 18.2-58, Robbery and Virginia Code Section 18.2-53.1, Use of firearm in the commission of a felony). The Board further noted that had the Applicant’s civilian case been resolved prior to his discharge, the civil court’s findings would have been binding on the Navy and his administrative separation for misconduct would not have occurred.  Relief granted.

For the edification of the Applicant, since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. Reenlistment policy of the Naval service is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054. An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.
Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 02 until Present, Article 1910-142 [formerly 3630605], SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 122 (robbery) and Article 128 (assault with a loaded firearm).

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