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

 ex-YN3, USN
Docket No. ND00-00409

Applicant’s Request 

The application for discharge review, received 000210, 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 000831.  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 3630610.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  In November 1997 I was given an other than honorable discharge because of a civilian conviction.  I feel I was given this discharge for a case my command was well aware of.  However Chula Vista Superior Court stated I never had a case #.  A warrant was issued and I was discharge.  If the court paperwork was updated I could have avoided being convicted.

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):

	Active:   USN 		920616 - 940825	HON
	Inactive: USNR (DEP)	910830 - 920615	COG

Period of Service Under Review:

Date of Enlistment:  940826		Date of Discharge:  971113

Length of Service (years, months, days):

	Active:    03  02  18
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  36

Highest Rate:  YN3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.80 (5)	Behavior:  3.84 (5)		OTA:  3.80	4.0 EVALS

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR (2), SASM, AFEM, GCM 

Days of Unauthorized Absence:  41 

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 3630610.

Chronological Listing of Significant Service Events:

970318:	Commander, Amphibious Group THREE Military Protective Order issued to applicant concerning his spouse.

970521:	Civil Conviction:  [Municipal Court of Long Beach Judicial District, County of Los Angeles, State of California] for violation of California Penal Code 273.5 (a); inflicting corporal injury on spouse.
Sentence:  To serve 90 days in the Los Angeles County Jail; perform 10 days community services; pay restitution in the amount of $100.00 to court; pay restitution in the amount of $25.00 to CRISP fee through the court; not to harass, molest or annoy victim, cooperate with the Public Health Officer in plan for domestic violence counseling; and to report within 48 hours of release from custody to the Public Health Investigator and donate $150.00.

970630:	Counseled regarding financial obligations with regard to his dependent.

970916:	Unauthorized absence from Commander Amphibious Group Three at 0730, 970916.  Member apprehended by San Diego Police Department at 1950, 970915 and charged with Domestic Violence.  Confined by Civil Authorities pending trial.
 
970916:	Civil Conviction:  [Municipal Court of California, County of San Diego, South Bay Judicial District] for violation of California Penal Code 243 (e): battery against former spouse, cohabitee, fiancée, current or previous dating partner.
Sentence:  To pay fine of $200.00, administrative fee of $25; enroll in 1 year domestic violence program; to have no contact with victim, and not to annoy, harass, or molest victim.

970918:	Civil Conviction:  [Municipal Court of California, County of San Diego, San Diego Judicial District] for violation of California Penal Code 273.5: inflicting corporal punishment.
Sentence:  To serve 90 days in the custody of the county Sheriff; pay fine of $200; pay restitution fine of $100; pay administrative fee of $35 and attend/complete domestic violence rehabilitation program.

971027:	Released from Civil Confinement and returned to military control at 1020, 971027 by Commander Amphibious Group Three.  Retained onboard for disciplinary action and further disposition.

971029:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civil conviction as evidenced by your civilian convictions of 970521 and 970918 for violation of California Penal Code 273.5 (inflicting of corporal injury) and your civil conviction of 970816 for violation of California Penal Code 243(e) (Battery against former spouse, cohabitee, fiancée, current or previous dating partner) and commission of a serious offence as evidenced by your unauthorized absence of more than 30 days due to civilian conviction from on or about 970916 to on or about 971027.

971029:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

971031:	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 and misconduct due to commission of a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

971104:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to civil conviction and misconduct due to commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 971113 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).

In response to the applicant’s issue 1, the Board found that the applicant was properly discharged for misconduct due to a civil conviction based on his 3 separate civil convictions.  In addition, the applicant was UA for 41 days because he was in jail and received a retention warning.  The applicant was convicted of assault in each civil conviction.  The applicant states that “if the court paperwork was updated I could have avoided being convicted.”  Regardless of this, the applicant was convicted on 3 separate occasions and therefore is responsible for his actions.  No relief will be granted based on this issue. 

Pertinent Regulation/Law (at time of discharge)

A.  Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 03 Oct 96 until 11 Dec 97, Article 3630610, SEPARATION OF ENLISTED PERSONNEL 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