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

 ex-AA, USNR
Docket No. ND00-00689

Applicant’s Request

The application for discharge review, received 000508, 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 before a traveling panel closest to Baltimore, MD.  The applicant listed the Disabled American Veterans as his representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area.  The NDRB also advised 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 001121.  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 1910-144 (formerly 3630610).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge.

2.  My average conduct and efficiency ratings/behavior and proficiency marks were good [or pretty good].

3.  I was so close to finishing my tour that it was unfair to give me a bad discharge.

4.  I have been a good citizen since discharge.

5. After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, and continue to support the contentions of the FSM in his, request for an upgrade from an Under Other Than Honorable (UOTH) to Honorable, or an upgrade of his UOTH to a General.

FSM (applicant) maintains within the evidentiary record, that his conduct and efficiency ratings were average, with his behavior and proficiency marks consistently good.  With it noted that the only major problem was with the civilian authorities.

It is the appeallants contention that it was unjust to assign a bad discharge when be was so close to the end of his tour of duty.  That one instance or bad choice should not be considered a reflection of his entire enlistment.  Further he maintains that he has had no trouble or problems with the civilian authorities since his discharge.

It is requested that clemency be considered as it is unjust for this FSM to continue to suffer the adverse consequences of a bad discharge for one moment of indiscretion, and therefore we request a favor conclusion be obtained and a General discharge be issued.

We ask for the Board's careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	970703 - 970728	COG

Period of Service Under Review:

Date of Enlistment:  970729		Date of Discharge:  981204

Length of Service (years, months, days):

	Active:    01  04  06
	Inactive:  None

Age at Entry:  17 parental consent 	Years Contracted:  8

Education Level:  12			AFQT:  36

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

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:

981015:	Civil Conviction:  Municipal Court for the City of Bremerton, WA for violation of possession of marijuana.
Sentence: Jail for 90 days, fine $1000.00.  Jail and fine suspended for 2 years.

981018:	Civil Conviction:  Municipal Court for the City of Bremerton, WA for violation of reckless driving.
Sentence:  Jail for 365 days, fine $5,000.00 and assessment $900.00.  Jail for 320 days and fine $4000.00 suspended for 2 years.

981030:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense, civil conviction and drug abuse.

981030:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

981125:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to civil conviction, commission of a serious offense, and drug abuse.  Commanding officer’s comments (verbatim): Strongly recommend separating AA (applicant) for Misconduct Due to Commission of a Serious Offense with an Other Than Honorable discharge.

981126:	COMGARGRU THREE 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 981204 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 the applicant’s issue 1, the Board found that the applicant was properly discharged for misconduct due to civil conviction based on 2 civil convictions during his short time in the service.  The Board did not find an injustice, as the applicant states in issue 1, nor did the applicant provide anything to indicate that there was an error of fact, law procedure or discretion or that his rights were prejudiced.  No relief will be granted based on this issue. 

In the applicant’s issue 2, the Board did not find any proficiency or conduct marks in the applicant’s service record.  The Board found that the applicant was only in the service for 1 year and 4 months and had 2 civil convictions.  The civil convictions of possession of marijuana and reckless driving were found to be significant misconduct and therefore would outweigh any possible good evaluation marks.  No relief will be granted based on this issue. 

The Board found that the applicant was not close to finishing his tour, as he states in his issue 3.  The applicant had only served 1 year and 4 months of an 8 year enlistment.  No relief will be granted based on this issue. 

In the applicant’s issue 4, there is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service.  However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D).  Those factors include, but are not limited to, the following:  evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided any documentation of good character and conduct.  Therefore no relief will be granted.  The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

The Board found the applicant’s issue 5 is a restatement of issues 1 through 4 that the Board addressed above.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 to 31 Aug 98, 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