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

 ex-BT1, USN
Docket No. ND01-00270

Applicant’s Request

The application for discharge review, received 010106, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing in the Washington National Capital Region.  The applicant listed the American Legion as the representative on the DD Form 293.

Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 020416.  After a thorough review of the testimony, 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 – Convicted by a civil court for offense(s) occurring during current term of military service, authority: MILPERSMAN, Article 3630600.  Discharged in absentia.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  This former member opines that his post-service conduct has been sufficiently credible 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:

Copy of DD Form 214
American Legion statement of issues
Personal statement dated November 27, 2000
Applicant's wife statement, undated
Character reference from pastor dated March 3, 2000
Job reference dated June 6, 2000
Character reference dated April 20, 2000
Character reference dated February 18, 2000
Copy of performance appraisal dated January 26, 1996
Copy of performance appraisal dated January 7, 1996 to March 31, 1997
Copy of performance appraisal dated April 1, 1997 to March 31, 1998
Copy of performance appraisal dated April 1, 1998 to March 31, 1999
Copy of performance appraisal dated April 1, 1999 to March 31, 2000
Copy of performance appraisal dated November 30, 1994 to March 31, 1995
Job reference dated March 30, 1998
Performance award, June 1997
Copy of performance appraisal dated February 24, 1992 to 31 August 1992
Copy of certificate of attendance dated July 28, 1992
Copy of entitlement to awards dated December 9, 1998
Forty-nine pages from applicant's service record

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		731127 - 771012	HON
		   USN			771013 - 830929	HON
	Inactive:  None

Period of Service Under Review:

Date of Enlistment:  830930		Date of Discharge:  870408

Length of Service (years, months, days):

	Active:    03  06  09
	Inactive:  None

Age at Entry:  28			Years Contracted:  4

Education Level:  12			AFQT:  00

Highest Rate:  BT1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.80 (2)	Behavior:  3.90 (2)		OTA:  3.80

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM (2), SSDR, MUC, BER, HSM

Days of Unauthorized Absence:  5

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Convicted by a civil court for offense(s) occurring during current term of military service, authority: MILPERSMAN, Article 3630600.  Discharged in absentia.

Chronological Listing of Significant Service Events:

860117:	Applicant to unauthorized absence from 0730, 17Jan86.

860122:	Applicant from unauthorized absence from 0820, 22Jan86 (5 days/surrendered).

860203:	Applicant turned over to Bureau of Alcohol, Tobacco and Firearms upon delivery of warrant for arrest.  Applicant released on his own recognizance to appear in Florida Federal Court on 18Feb86.

860227:	Applicant contacted command an informed that he was arrested and out on bond in Mayport, FL to appear for trial 10Mar86.  Command informed applicant of unauthorized status and instructed him to turn himself in to the nearest activity.

860409:	Civil Conviction:  U. S. District Court, Middle District of Florida for violation of conspiracy against the U.S. and attempting to sell and deliver an unregistered Uzi machine gun for $500 to an agent of the Firearms administration.
Sentence: Confinement for 2 years, assessment of $100.00.

861209:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civil conviction.

861210:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

870206:	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, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

870316:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to civil conviction.

870327:	CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to civil conviction.  Authority granted to discharge applicant in absentia.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged, in absentia, on 870408 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).

Issue 1.  The Board found that the applicant’s post service conduct was not sufficiently credible to warrant relief.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560, Change 7/86, effective 15 Dec 86 until 14 Jun 87), Article 3630600, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT.

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 “afls10.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