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

FOR OFFICIAL USE ONLY

 ex-SA, USN
Docket No. ND06-00046

Applicant’s Request

The application for discharge review was received on 20051004.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable if possible or general (under honorable conditions).  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that he was approaching the 15-year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington D.C. area.  Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060717.  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 by reason of misconduct due to civil conviction.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“It has been 14 years, I’m believing it should be moved up.  I was told at time of Discharge it would move up over time.”

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214
Statement from Applicant, dtd September 23, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19900127 - 19900722	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19900723		Date of Discharge:  19911030

Length of Service (years, months, days):

	Active:    01 03 08  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  36 days
	Confinement:		  None

Age at Entry:  18

Years Contracted:  4 (24 month extension)

Education Level:  12				AFQT:  55

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*				Behavior:  NA*		OTA:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): None.

* Not 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: 

910425:	U. S. Naval Investigative Service report.

910425:	Applicant arrested and charged with sexual assault second degree and risk on injury to a minor.

910924:	Civil Conviction:  Willimantic Court for violation of risk of injury to a minor charge.
Sentence:  Confinement for 5 years; suspended after 18 months, and probation for 3 years and no contact with the victim.  [Extracted from Commanding Officer’s letter dated 911011.]

910924:	Applicant to unauthorized absence at 1600 on 910924.

911001:	Applicant notified of intended recommendation for discharge with the characterization of service may be under other than honorable conditions by reason of misconduct, commission of a serious civilian offense as evidenced by your felony conviction for Risk of Injury to a Minor.

911001:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

911011:	Commanding Officer, Naval Submarine School recommended discharge under other than honorable conditions by reason of misconduct, commission of a serious civilian offense as evidenced by felony conviction for risk of injury to a minor.  Commanding Officer’s comments:  “(1) On 1 October 1991, SA J_(Applicant) was notified of his pending administrative discharge in person at the Brooklyn State Penitentiary in Connecticut.  He chose to waive all of his rights.
	(2) On 8 October 1991, SA J_(Applicant)’s Defense Counsel, Attorney M_ K_ was contacted.  He stated that due to the voluntary plea of guilty by SA J_(Applicant), he was not entitled to appeal his case.  SA J_(Applicant) has not been in contact with his attorney since the conviction.
	(3) Due to the serious nature of the offense which SA J_(Applicant) has committed, he is unsuitable for further Naval service.  I recommend he be expeditiously discharged with an Other Than Honorable characterization.”

911028:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct (civil conviction).

911030:	Applicant from unauthorized absence at 0800 on 911030 (36 days).

*Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged, in absentia, on 19911030 by reason misconduct due to civil conviction (A and B) with a service characterization of under other than honorable conditions.  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  

The Applicant requests an upgrade based on equity. The applicant states, “It has been 14 years, I’m believing it should be moved up.  I was told at time of Discharge it would move up over time.” The NDRB advises the Applicant that there is no law or regulation that authorizes a discharge to be automatically upgraded. A former service member has 15 years, from the date of discharge, to petition the Board for consideration of an upgrade.  The Board does not automatically or incrementally upgrade a discharge over any specified period of time. Relief is denied

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 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 felony civil conviction for sexual assault second degree and risk or injury to a minor, which is the equivalent of a violation of UCMJ Article 134 (indecent assault). 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. The NDRB advises the Applicant that certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline. A violation of Article 134 is considered a serious offense and typically warrants a punitive discharge if adjudged at a special or general court-martial. Further, when a member is convicted of a felony that includes a sentence to confinement for more than 1 year (whether suspended or not) or an offense involving sexual perversion, processing is mandatory. The Board found no evidence of impropriety or inequity in the Applicant’s discharge.  The Applicant’s misconduct is clearly documented, therefore, relief is denied. 

The following is provided for the edification of the Applicant.  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 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 post-service documentation for the Board to consider.  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 additional evidence related to this discharge.  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.  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 134 (indecent assault).

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