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NAVY | DRB | 2001_Navy | ND01-00174
Original file (ND01-00174.rtf) Auto-classification: Denied


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

ex-BMSN, USN
Docket No. ND01-00174

Applicant’s Request
The application for discharge review, received 001121, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant listed the Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010503. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. 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 3630600. Discharged in absentia..

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. My O.T.H. Discharge has nothing to do with my military performance. It was caused by a criminal conviction of a crime that was not done by me. If it wasn’t for it, I would have retired from the Navy in late year 2001 with a Honorable Discharge. My Navy career was flawless since 1982, as well as my 2 yr stint with the Army National guard, so with that, you can say I had a flawless 17 year military career. I gave the U.S. Military 17 good perfect years, I deserve an Honorable Discharge as well as all of my benefits and entitlements. An disability for my high cholesterol/blood pressure which was discovered during my discharge physical in Virginia. It was not found during my military career. So that’s a military service connected injury which I'm entitled to disability entitlements under said matter. I spent 15 years straight at sea while in the Navy. I grew up in the Navy, its like a extended family now will the Navy help on of it sons. Do we take care of our own?

2. After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we believe the appellant has adequately set forth his contentions on application for an upgrade of the discharge om Under Other Than Honorable to Honorable.

The evidence of record reflects continued service from February 13, 1987 to March 29, 1996, receiving a Under Other Than Honorable discharge. This discharge due to a civilian charge and conviction. The record also reflects the FSM's period of active service was honorable, with the only blemish being the civil conviction.

It is the FSM's contention that no one consulted with his legal representative before the Court proceedings, and he does not feel that his prior honorable service was taken into consideration. If this is the case then the actions of the "Chain of Command" at that time contained improprieties that are in need of corrective action.

In light of the above findings we ask for equitable relief, requiring that this Naval Board grant an upgrade of the FSM's discharge from Under Other than Honorable to General Under Honorable conditions.

We ask for the Boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant.




Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Statement from applicant
Copy of DD Form 214
Copy of Honorable Discharge Certificate dated May 4, 1995
Copy of certificate for Offenders Undergoing Transition Program dated July 3, 1997 (2 copies)
Statement from applicant's mother
Copy of Achievement Certificate dated April 9, 1998
Copy of applicant's life skills curriculum
Copy of certificate dated September 17, 1993
Copy of Certificate of Graduation dated October 2, 1992
Character reference, undated

PART II - SUMMARY OF SERVICE
Prior Service (component, dates of service, type of discharge):
         Active: USN                        920724 - 950504  HON
 Active: USN                        870213 - 920723  HON
Inactive: USNR (DEP)     861113 - 870212  COG
Inactive: USNR            861025 - 861112  To Enlist USN
Active: USN                        821025 - 861024  HON
Inactive: USNR (DEP)     820607 - 821024  COG
Active: USANG             801128 - 810514  HON
          Inactive: USANG (DEP)    801105 - 801127  HON

 Period of Service Under Review :
Date of Enlistment: 950505               Date of Discharge: 960329

 Length of Service (years, months, days):

         Active: 00 10 25
         Inactive: None

 Age at Entry: 32                          Years Contracted: 3

 Education Level: 12                        AFQT: 23

 Highest Rate: BM2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA*                 Behavior: NMA*            OTA: NMA*

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, NEM, GCM, NDSM, AFEM, SASM, SOSR (USCG), USCGUC

 Days of Unauthorized Absence: 34

*No marks assigned

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

951026:  Retention Warning: Advised of deficiency (Substantiated case of child physical abuse per NAVMEDCEN Portsmouth ltr 1752 Ser 0902.A/111624 of 10 Oct 85.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
960111:  Applicant found guilty of abuse of children and aggravated malicious wounding.

960122:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civilian conviction and misconduct due to the commission of a serious offense.
960123:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
960212:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed a civilian conviction and serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

960212:  Applicant amended statement of awareness as follows: Respondent intends to appeal his civil conviction and does not request separation before his appeal is decided or the time for appeal has passed.
960216:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to civilian conviction and misconduct due to the commission of a serious offense. Commanding officer’s comments (verbatim): BM2 (applicant) is an outstanding performer who has contributed to he command's mission. He has demonstrated that he can be an asset if he remains on active duty with the U.S. Navy. However, his involvement with civil authorities cannot be overlooked. BM2 (applicant's) conduct was in direct violation of civil laws and could have caused death if the injuries were not detected in time. He was afforded all of his applicable rights per reference (a), including the right to an Administrative Board, which was conducted on 12 February 1996. based on the offenses committed, and the recommendations of the Administrative Board, it is recommended that BM2 (applicant) be separated from the naval service with an Other Than Honorable Discharge. Member indicated that he intended to file an appeal of his convictions, and requested that he not be separated before the appeal is final or his time for appeal has expired.

960223:  Applicant to unauthorized absence 1000, 23Feb96. Applicant sentenced to 20 years with 11 years suspended.
960312:  BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

960328:  Applicant administratively SOB TPU Norfolk, VA 0800, 28Mar96. Applicant currently incarcerated in the Newport News City Jail.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged in absentia on 960329 under other than honorable conditions for misconduct due to commission of a serious offense (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).

The applicant’s first issue states that his discharge: “…has nothing to do with my military performance. It was caused by a criminal conviction of a crime that was not done by me.” While the applicant may feel his civil criminal conviction has no bearing on his military career, the Board found no impropriety or inequity in the applicant’s discharge. The record shows and Administrative Board heard the applicant’s case, found the applicant had committed misconduct, and recommended discharge with an Other Than Honorable Discharge. The applicant’s commanding officer reviewed the Administrative Board’s findings and recommended discharge with an Other Than Honorable and BUPERS authorized the discharge. Relief is not warranted.

Additional issues provided by the applicant’s representative state: “The evidence of record reflects continued service from February 13, 1987 to March 29, 1996, receiving a Under Other Than Honorable discharge. This discharge due to a civilian charge and conviction. The record also reflects the FSM's period of active service was honorable, with the only blemish being the civil conviction.” There is no impropriety or inequity in the applicant’s discharge. The applicant was found guilty of aggravated malicious wounding in civil court. Relief is denied.

The applicant’s representative’s second issue states: “It is the FSM's contention that no one consulted with his legal representative before the Court proceedings, and he does not feel that his prior honorable service was taken into consideration. If this is the case then the actions of the "Chain of Command" at that time contained improprieties that are in need of corrective action.” The NDRB found this issue not true. The record clearly shows that the applicant elected and appeared before an Administrative Discharge Board. The applicant was represented by qualified counsel. There is no evidence that the applicant’s entire service record was not considered by the Board. Relief is denied.

 The applicant is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is highly recommended.




Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

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      


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