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NAVY | DRB | 2002_Navy | ND02-00939
Original file (ND02-00939.rtf) Auto-classification: Denied


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

ex-SH2, USN
Docket No. ND02-00939

Applicant’s Request
The application for discharge review, received 010618, requested that the characterization of service on the discharge be changed to honorable. 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 030314. 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 1910-144 (formerly 3630610).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. I am requesting that my discharge be upgraded to Honorable, due to I have received good conduct award three times. I also have had an honorable discharge prior to re-enlistment.

2. My average conduct and efficiency ratings/behavior and proficiency marks were good [or pretty good].

3. I received awards and decorations.

4. I received letters of recommendation.

5. I had combat service.

6. My record of promotions showed I was generally a good service member.

7. I was close to finishing my tour that it was unfair to give me a bad discharge.

8. I had a prior Honorable Discharge.

9. I have been a good citizen since discharge.

10. My record of NJPs/Article 15s indicates only isolated or minor offenses.

11. My record of AWOL/UA indicates only minor or isolated offenses.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     850731 - 851208  COG
         Active: USN               851209 - 891007  HON
                  USN                       891008 - 950817  HON

 Period of Service Under Review :
Date of Enlistment: 950817               Date of Discharge: 981014

 Length of Service (years, months, days):

         Active: 03 01 27
         Inactive: None

 Age at Entry: 37                          Years Contracted: 5

 Education Level: 12                        AFQT: 34

 Highest Rate: SH2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.25 (4)    Behavior: 1.75 (4)                OTA: 2.79

 Military Decorations: None

 Unit/Campaign/Service Awards: N&MOSR (4), BER, NDSM, SASM, SSDR, NAM, GCM (3)

 Days of Unauthorized Absence: 34

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 1910-144 (formerly 3630610).

 Chronological Listing of Significant Service Events :

980203:  Applicant apprehended by civilian authorities on charges of assault 1940, 980203.

980204:  Applicant arraigned. Bail denied. Held for trial. Court date set for 980311.

980205:  Applicant to unauthorized absence 1100, 980205.

980224:  Order of protection issued to Applicant. Order in effect until 980824. Applicant also ordered to participate in Navy Domestic Violence Program.
980311:  Civil Conviction: Norfolk City Court for violation of simple assault against his spouse.
 Sentence: Confinement for 2 months, probation for 2 years, civilian domestic counseling for 18 weeks. Confinement: 1 month already served, 1 month suspended.
980311:  Applicant from unauthorized absence 2221, 980311
(34 days/surrendered).
980414:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civil conviction.
980421:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
980527:  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, misconduct due to commission of a serious offense, and by reason of family advocacy program rehabilitation failure, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

980824:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to civil conviction, misconduct due to commission of a serious offense and family advocacy program rehabilitation failure.

980922:  Commander, Naval Base, Norfolk 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 981014 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 1-8, 10-11: The Applicant requests his discharge be upgraded to honorable due to his overall good service record. The Board’s regulation limits its review to a determination on the propriety and equity of the discharge under review and does not consider honorable service from prior enlistment periods. In the Applicant’s case the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge for the enlistment period August 17, 1995 to October 10, 1998 proper and equitable. The receipt of awards and favorable performance evaluations during the Applicant’s enlistment, do not guarantee an honorable discharge. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure of that expected of a sailor. The Applicant ’ s conduct, which forms the primary basis for determining the character of service, reflects a civil conviction for simple assault against his wife. The Applicant ’ s service is equitably characterized as being performed under other than honorable conditions due to his civil conviction. The Applicant ’ s conduct falls far short of that required for an honorable characterization of service. The record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

 Issue 9: T here 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, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. After a complete review of the record, including the evidence submitted by the Applicant, the Board determined that the Applicant’s discharge was proper and equitable and that his evidence of post service accomplishments, stating that he has been a good citizen since his discharge, was found not to mitigate the misconduct for which he was discharged. 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 additional documentation to support any claims of post-service accomplishments 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), Change 21, effective 01 Sep 98 until 15 Sep 99, Article 1910-144 (previously 3630610), Separation by Reason of Misconduct - Civilian Conviction.

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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