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NAVY | DRB | 2006_Navy | ND0600079
Original file (ND0600079.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-HM1(SW), USN
Docket No. ND06-00079

Applicant’s Request
The application for discharge review was received on 20051017. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance discharge review before a traveling panel. The Applicant did not designate a representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC at the Washington Navy Yard. The NDRB also advised the Applicant that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060726. 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 and reason for discharge shall not change. The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to civilian conviction .

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“The reason I was separated from the U.S. Navy was due to civilian conviction of misdemeanor charges. Although, the was case was under Appeal, the U.S. Navy still discharged me. The civilian charges have been “expunged” and therefore, legally I have never been convicted any offenses. I have completed my Bachelor’s of Science in Nursing and want to join the Naval Reserves as an Officer in the medical field. However, I’m not eligible because of my RE-4 entry in block #27 in my DD 214. Therefore, I not only need the entries in blocks #24, 26, 28 changed, but most importantly the entry in block 27 changed to an entry that would allow me to enlist in the U.S. Naval Reserves.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Letter from Commander, Navy Region Southwest to NAVMED Center regarding the Family Advocacy Center (FAC), Case Review Committee (CRC) Results ICO HM1 D _ C_, USN, dtd Dec 7, 2000
Letter to Applicant from B_ L_, Secretary to J_ P. M_, Attorney at Law, dtd April 19, 2004
Expungement order from Superior Court of the State of California, County of Los Angeles dtd April 15, 2004
Transcript of court proceedings from Applicant's case in the Superior Court of the State of California, County of Los Angeles (37 pages)

PART II - SUMMARY OF SERVICE



 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19860318 - 19860804      COG
          Active: USN      19860805 - 19900726      HON
                   USN      19900727 - 19960530      HON

 Period of Service Under Review :
Date of Enlistment: 19960531             Date of Discharge: 20010907

 Length of Service (years, months, days):

         Active: 05 03 07
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              None

 Age at Entry: 28

 Years Contracted: 6

 Education Level: 12                                 AFQT: 43/80/45

 Highest Rate: HM1

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 3.8 (6)                       Behavior: 4.17 (6)                OTA: 3.74

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Sea Service Deployment Ribbon, Armed Forces Expeditionary Medal, Good Conduct Medal (3 Bronze Stars), National Defense Service Medal, Navy & Marine Corps Achievement Medal, Meritorious Unit Commendation, Designated Enlisted Surface Warfare Specialist, Navy & Marine Corps Corps Overseas Service Ribbon, (Bronze Star), Navy Commendation Medal


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

GENERAL (UNDER HONORABLE CONDITIONS)/ MISCONDUCT, authority: MILPERSMAN, Article 1910-144 (formerly 3630610).
Chronological Listing of Significant Service Events :

960531:  Applicant reenlisted this date for a term of 6 years.
001024:  Applicant charged on 000922 in the County of Los Angeles under California Penal Code 273.5(A) Inflict corporal injury on spouse and Penal Code 243 (E)(1) Battery against former spouse/fiancé.

010511:  Applicant received civil conviction: East Los Angeles Superior Court for violation of the California Penal Code 273.5(A) Inflict corporal injury to a spouse, California Penal Code 243(E)(1) battery on a spouse and California Penal Code 653M(a) annoying telephone calls.

010529   Applicant sentenced: Jail for 80 days (suspended) placed on summary probation for 36 months under the following conditions: Serve 10 days in Los Angeles County Jail; pay $200 domestic violence fund, Pay $100 for restitution to the State Restitution Fund. Attend one year domestic batterer's program. Attend 6 months parenting class.
010801:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct-civilian conviction.
010801:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
UNDATED:         Commanding Officer, Naval School of Health Sciences, San Diego, California recommended discharge by reason of misconduct due to civilian conviction. Commanding Officer’s comments: “Upholding civilian law and completely supporting the judicial process, it is in the best interest of the Navy to release HM1 C_(Applicant) from military service. It is my hope that every opportunity be given to HM1 C_(Applicant) to rectify and heal any wrongs he was responsible for. HM1 C_(Applicant) has appealed his civil conviction, which will take 12 months or more for the process to reviewed. I have every confidence that this Sailor will correct his course and become a mature citizen, however, the consequences of his actions will greatly hinder any further naval service.”
010814:  CNPC directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20010907 by reason of misconduct due to civil conviction (A and B) with a service characterization of general (under honorable conditions). 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).

In the Applicant’s case, he contends that legally he has never been convicted of an offense because his conviction has since been expunged. That his record has been expunged is immaterial to whether he committed the offense. The expungement order that the Applicant provided in his package and the statute referenced therein indicate that an expungement does not obliterate the fact that the person was adjudged of a crime. The expungement order states specifically that he must list the conviction if directly asked on any government questionnaire or application. Per MILPERSMAN, Article 1910-144 (formerly 3630610) a ll civilian convictions (federal, state, and local) including deferred prosecutions are binding on the issue of whether misconduct occurred. That article provides that service m embers can be separated based on civilian convictions or actions tantamount to findings of guilt. The types of actions included within that definition are adjudication withheld, deferred prosecution, entry in adult/juvenile pretrial intervention programs, and any similar disposition of charges that includes the imposition of fines, probation, or community service when a similar offense under the UCMJ would warrant a punitive discharge. The Applicant's administrative processing was proper under MILPERSMAN, Article 1910-144 (formerly 3630610). Therefore, no relief will be granted.

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. A general 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 civilian conviction of three provisions of the California Penal Code (Inflicting corporal injury to a spouse , Battery on a spouse, and Making annoying telephone calls). Battery on a spouse is similar to assault consummated by a battery a violation of Article 128 of the UCMJ for which the maximum punishment at court martial includes a dishonorable discharge. 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. Relief is not warranted.

The Applicant also asked for of a change of the narrative reason in block 28 of his DD- 214. The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the reason for discharge if such change is warranted. The summary of service clearly documents that civil conviction was the reason the Applicant was discharged. Since no other Narrative Reason for Separation could more clearly describe why the Applicant was discharged, a change would be inappropriate. Relief denied.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. Reenlistment policy of the naval service is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

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), Change 33 effective
9 Jul 01 until 21 Aug 02, Article 1910-144 (previously 3630610), Separation by Reason of Misconduct - Civilian Conviction.

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 128, Assault Consummated by a battery an offense similar to the battery under California penal statute of which the Applicant was sentenced.

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

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