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NAVY | DRB | 2001_Navy | ND01-01176
Original file (ND01-01176.rtf) Auto-classification: Denied


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

ex-HTC, USN
Docket No. ND01-01176

Applicant’s Request
The application for discharge review, received 010913, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested 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 020417. 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 - 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

1. My discharge was inequitable because it was based on one isolated incident in over 17 1/2 years of honorable service in the Navy with no other adverse action.
2. My conviction was a civil, non military offense.
3. I was mentally and emotionally unstable due to severe health problems, mental and physical stress and exhaustion during the time my offense was committed ie: diabetes, sleep apnea both untreated in the military. I have been punished for my civilian offense and undergone and successfully completed therapy/counseling.
4. My post military conduct has been honorable which should substantiate that failure to control undesirable behavior was for a large part due to mental & emotional health present at that time.
 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Statement from applicant
Statement from applicant's wife
Character reference dated March 12, 2001
Character reference dated February 10, 2001
Character reference dated February 22, 2001
Letter to Member, US House of Representatives dated October 19, 2001
Copy of DD Form 214
Copy of employment history
Copy of performance review dated April 26, 1996
Copy of pay stubs
Character letter dated October 8, 2001
Letter from Social Security Administration re: disability
Character reference dated October 15, 2001
Character reference dated October 10, 2001
Character reference dated October 11, 2001
Character reference dated October 10, 2001
Note from applicant re his parole officer
Nineteen pages from applicant's service record
Six pages from applicant's medical record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        740110 - 801218  HON
                  USN              700410 - 740109  HON
         Inactive: USNR (DEP)     691217 - 700409  COG

 Period of Service Under Review :
Date of Enlistment: 801218               Date of Discharge: 880103

 Length of Service (years, months, days):

         Active: 01 00 15
         Inactive: None

 Age at Entry: 38                          Years Contracted: 6 (12 mo. ext.)

 Education Level: 12                        AFQT: 62

 Highest Rate: HTC

 Final Enlisted Performance Evaluation Averages : All enlisted performance reports were available to the Board for review.

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, AFEM, GCM (3), VSM, ESWS

 Days of Unauthorized Absence: None

 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 :

801219:  Applicant reenlisted for 6 years onboard USS GALLANT (MSO 489) at Treasure Island, CA.
871219:  Applicant extended enlistment for 12 months.

 871029:  Civil Conviction: Superior Court for two counts of forcible child molest (plead guilty).
         Formal sentencing to be in December.

871102:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civil conviction.
871116:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
871203:  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.

871211:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to civil conviction. Commanding officer’s comments (verbatim): In view of seriousness of multiple felony convictions and approach of SNM's 18Dec87 EAOS, recommend expeditious processing for administrative separation under other than honorable conditions.

871215:  Applicant remained in civil authorities custody at conclusion of court appearance on 15 Dec 87. Scheduled to appear in cour for sentencing on 7 Jan 88.

871230:  CNMPC 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 in absentia on 880103 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 states his discharge was inequitable because it was based on one isolated incident in over 17 1/2 years of honorable service. The Board found that the applicant’s prior service is not sufficient to mitigate the characterization of service due to the seriousness of the charges for which the applicant was convicted in civilian court. Relief denied.

Issue 2. There is no impropriety or inequity in the fact that the applicant was involuntarily separated for misconduct for commission of a serious offense due to a civilian conviction [A]. Relief denied.

Issues 3 and 4. The Board found no credible documentation that the applicant’s misconduct was caused by his alleged medical problems. The applicant’s punishment and completion of therapy is not sufficient to warrant an upgrade to his discharge. Relief denied.

The applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the applicant’s enlistment. Additionally, 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 the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to his discharge. He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Legal representation at a personal appearance hearing is highly recommended but not required. Relief denied.

Pertinent Regulation/Law (at time of discharge)

 A. The Naval Military Personnel Manual, (NAVPERS 15560-A, effective 870615 - 890110), Article 3630600, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT.

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 “ afls10.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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