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NAVY | DRB | 2004_Navy | ND04-00269
Original file (ND04-00269.rtf) Auto-classification: Denied


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

ex-PC2, USN
Docket No. ND04-00269

Applicant’s Request
The application for discharge review was received on 20031201. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record 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 20040817. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety, but did discern an inequity in the characterization of the Applicant’s service. The Board’s vote was 4 to 1 that the character of the discharge shall change to GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-144 (formerly 3630610).


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “I S_ A. D_ served 9 yrs and 11 months in the United States Navy. I apologize for my misconduct that lead to my administrative discharge with an Other Than Honorable. I would like for this board to change my discharge to Honorable.

I’m a single parent with five kids. I just wish that I could have my discharge overturned, so I can better myself and theirs. So, please grant my wish/request that I can excel in whatever I decide to do in life.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Copy of letter from attorney dated 25 February 2002
Copy of letter from P_ S_, RE: completion of anger management program dated 27 February 2002
Copy of letter from S_ M_, RE: completion of stress management class dated 26 February 2002
Copy of Receipt for payment of fine from 19 th Judicial Circuit, Lake County, IL dated 16 August 2002
Copy of Public Service Termination Report dated 10 May 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     910920 - 920525  ELS
         USNR (DEP)      920715 – 930118  COG
         Active: USN                        930119 - 980330  HON

 Period of Service Under Review :
Date of Enlistment:     980331   Date of Discharge: 021220

 Length of Service (years, months, days):

         Active: 04 08 21
         Inactive: None

 Age at Entry: 27                          Years Contracted: 2 (extended for 17 months)

 Education Level: 14                                          AFQT: 32

 Highest Rate: PC2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.80 (5)    Behavior: 2.80 (5)                OTA: 3.49

 Military Decorations: NAM (3), GCM (2), ESWS

 Unit/Campaign/Service Awards: NDSM (2), SSDR (3), SWAS, MUC, AFEM,

Days of Unauthorized Absence: None

 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 :

000124:  NJP for violation of UCMJ, Article 86 (2 Specs): unauthorized absence; violation of UCMJ, Article 92: wrongfully charging unauthorized charges to his government VISA card.
         Award: Forfeiture of $435.00 per month for 1 month, restriction for 7 days, reduction to E-4 (suspended for 6 months). No indication of appeal in the record.

020225:  Civil Conviction: Circuit Court of the Nineteenth Judicial Circuit, Lake County, Illinois for violation of Chapter 720, Illinois Compiled Statutes, Act 5, Article 31, Resisting or obstructing a peace officer.
 Sentence: Fine of $100.00, Complete Anger control classes, 75 hours of community service, no contact with L_ K_, no other violations.
021106:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civil conviction, erroneous enlistment, and commission of a serious offense.
021106:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27(b), elected to appear before an Administrative Discharge Board.
021113:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the evidence presented supported a finding of misconduct due to a civil conviction and erroneous enlistment, but did not support commission of a serious offense. The Board further found that the misconduct and erroneous enlistment warranted separation, and recommended discharge under other than honorable conditions. The Administrative Discharge Board unanimously recommended that the separation be suspended for a period of 12 months.

021206:  Commanding Officer concurred with all of Board’s findings and recommendations except for suspension of separation. Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to civil conviction.

021217:  Commander, Naval Training Center, Great Lakes 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 20021220 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 but not equitable and an upgrade to general (under honorable conditions) is warranted (C and D).

Issue 1: 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 of reference (B), the Board determined that relief is warranted under equitable grounds. To permit relief, an error or inequity must be found to have existed during the period of enlistment under review. Even though the discharge was determined to have been otherwise equitable and proper at the time of issuance, the Board may still grant relief if it determines that relief is warranted based upon a review of the Applicant’s service record and outstanding post service conduct. Such a review is limited to the extent that such matters provide a basis for a more thorough understanding of the performance of the Applicant during the period of service subject to review. Factors the NDRB are authorized to consider include such things as quality of service, as evidenced by service history, awards and decorations, letters of commendation, etc., prior military service, capability to serve, and family and personal problems that may have affected the member’s ability to serve. In Applicant’s case, the Board determined that relief was warranted based upon consideration of the Applicant’s overall service record and his outstanding post service conduct. However, because the Applicant’s record was marred by nonjudicial punishment, civilian conviction, and adverse evaluation reports, the Board found that Applicant’s service is more accurately characterized as general (under honorable conditions). Partial relief granted.

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 further claims of post-service accomplishments or any other evidence related to his discharge 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), re-issued October 2002, effective 22 Aug 02 until Present, 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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