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

ex-SA, USN
Docket No. ND00-00582

Applicant’s Request

The application for discharge review, received 000410, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions.  The applicant requested a personal appearance hearing discharge review.  The applicant listed the American Legion as the representative on the DD Form 293.

Decision

 A personal appearance hearing was conducted in Washington, D.C. on 010514.  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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  (Equity Issue)   As evidenced by his supporting documentation, this former member opines that his post-service conduct has been sufficiently creditable to warrant the Board’s clemency relief as authorized under provisions of SECNAVINST 5420.174C, enclosure (1), paragraph 9.3.

Documentation

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

Statement from applicant dated August 18, 2000
Employer/Character reference dated May 16, 2000
Volunteer statement for applicant from Charles Young Hilltop Academy dated June 21, 2000
Character reference dated June 1, 2000
Character reference dated July 27, 2000
Character reference dated June 30, 2000
Recommendation for applicant dated May 18, 2000
Character reference dated February 18, 2000
Job/character reference dated May 30, 2000
Character reference, Undated
Copy of applicant's resume
Copy of un-official transcript from Strayer University dated June 5, 2000
Letter from Metropolitan Police Department with Entry-level police officer written test results dated April 22, 2000
Park Police Officer Candidate Entrance Examination results dated June 10. 2000
Copy of applicant's criminal history request dated May 26, 2000
Copy of Form 1023, Application for Recognition of Exemption dated November 1, 1996
Copy of 872-C, Consent Fixing Period of Limitation Upon Assessment of Tax Under Section 4940 of the Internal Revenue Code dated November 1, 1996
Copy of Certificate of Incorporation dated February 26, 1996
Copy of Articles of Incorporation filed February 26, 1996
Copy of Application for Exemption dated November 1, 1996

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	901031 - 910618	COG

Period of Service Under Review:

Date of Enlistment:  910619		Date of Discharge:  940414

Length of Service (years, months, days):

	Active:    02  09  26
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  35

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.33 (3)	Behavior:  3.47 (3)		OTA:  3.47

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  17

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

930521:	NJP for violation of UCMJ, Article 128: Assault on 8Apr93.
	Award: Forfeiture of $474 per month for 1 month, reduction to SA.  Reduction suspended for 6 months.  No indication of appeal in the record.

930521:	Retention Warning:  Advised of deficiency (Assault on 8Apr93.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

930923:	Vacate reduction to SA awarded at CO's NJP of 21May93 due to continued misconduct.

930923:	NJP for violation of UCMJ, Article 92: Dereliction in the performance of duty on 4Sep93.
	Award: Correctional custody for 30 days.  No indication of appeal in the record.

931206:	Applicant to unauthorized absence 0730, 6Dec93.  Applicant arrested for armed robbery.  Applicant held in civil confinement pending disposition of offenses.

931223:	Applicant returned to military control at 2130, 23Dec93 (17 days/apprehended).

940105:	Civil Conviction:  Duvall County Courthouse for violation of accessory after the fact on 6Dec93.
Sentence: Adjudication was withheld in return for agreement to testify against petty officer.  Probation for 6 months, community service for 50 hours and court cost of $253.00.

940308:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

940308:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

940309:	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.

940317:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. 

940331:	BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

961021:	NDRB documentary record review Docket Number ND96-00588 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 940414 under other than honorable conditions for misconduct due to commission of a serious offense (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

The applicant’s representative submitted the following as issue 1: (Equity Issue)   As evidenced by his supporting documentation, this former member opines that his post-service conduct has been sufficiently creditable to warrant the Board’s clemency relief as authorized under provisions of SECNAVINST 5420.174C, enclosure (1), paragraph 9.3.
The Navy Discharge Review Board is empowered to change the discharge only if equitable relief is determined to be appropriate.  Equitable relief is an instance of leniency to moderate the severity of the punishment imposed.  The Board carefully reviewed the applicant’s military record and post-service accomplishments and found that equitable relief was not warranted.  The Board determined that the applicant’s misconduct diminished the quality of his service below that meriting an upgrade to his characterization of service.  Accordingly, the Board voted unanimously that the applicant’s characterization of service shall not change. 
   
Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 92, for dereliction in the performance of duty, if adjudged at a Special or General Court-Martial.

C.  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.  

D.  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.

E.  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