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

 ex-SN, USN
Docket No. ND99-00888

Applicant’s Request

The application for discharge review, received 990616, 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 a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000323.  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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

I missed a ship’s movement due to an auto mishap.  This occurred in Dec 88.  While awaiting for the resolution of the auto accident, I was away from base with a friend.  My friend got into an altercation with a civilian.  I attempted to break up the fight.  I was unjustly accused of being involved in the fight and I was imprisoned in a civilian jail.  Due to this confinement, I was confined for 3 weeks.  I was never given an opportunity to state what actually happened in my own words.  Please upgrade the discharge to General Under Honorable Conditions.  My prior Naval Record was very positive.  I was proud to serve in the US Navy.  I am attempting to receive a General Under Honorable Conditions Discharge.

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Copy of DD Form 214.

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive: USNR (DEP)	861024 - 861102	COG

Period of Service Under Review:

Date of Enlistment:  861103		Date of Discharge:  900222

Length of Service (years, months, days):

	Active:    02  08  03
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  27

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.70 (2)	Behavior:  2.70 (2)		OTA:  2.70

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  224

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense(convicted by civil court),  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

890523:	Circuit Court of the City of Norfolk finds Applicant guilty of Robbery by force and Malicious Wounding.

890706:	Applicant sentenced to six (6) years in the Virginia Penitentiary for Robbery.  Applicant sentenced to ten (10) years probation following release from prison for Robbery by force.

890825:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by conviction of Robbery by Force and Malicious wounding.

890829: 	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

890915:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

891010:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

891114:	CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense (Civilian Conviction).

891226:	TPU Norfolk VA requests authority to discharge applicant in absentia in accordance with CNMPC directive 891114 due to applicant’s incarceration.

900207:	CNMPC directs discharge of applicant in absentia due to incarceration.	

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 900222 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).

In the applicant’s issue 1, the Board found the issue without merit. The applicant was properly discharged in absentia due civilian conviction. The NDRB found no injustice to occurred in the applicant’s discharge.  Relief not warranted.

The following is provided for the applicant’s edification.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  The applicant must be aware that 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, may be considered by the NDRB.  The applicant is reminded that he 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 15560A), Change 8, effective 
21 Aug 89 until 14 Aug 91, 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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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
		Washington Navy Yard
		720 Kennon Street SE Rm 309
		Washington, D.C.  20374-5023