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

ex-SM2, USN
Docket No. ND01-00274

Applicant’s Request

The application for discharge review, received 010108, 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010601.  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, (in absentia).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  My Under Other Than Honorable discharge was inequitable because it was based on one isolated incident in seven years of otherwise exemplary service.

Documentation

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

Copy of DD Form 214
Enlisted Performance Record Service Page (NAVPERS 1070/609) (3 pages)

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		890328 - 930325	HON
	Inactive: USNR (DEP)	890325 - 890327	COG

Period of Service Under Review:

Date of Enlistment:  930326		Date of Discharge:  960417 (in absentia)

Length of Service (years, months, days):

	Active:    03  00  22 (Doesn't exclude confinement and lost time)
	Inactive:  None

Age at Entry:  23			Years Contracted:  4 

Education Level:  10	 (Received Adult High School Diploma and attended 2 years of community college

AFQT:  93

Highest Rate:  SM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (2)	Behavior:  3.25 (4)		OTA:  3.5

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR (w/Bronze Star), NDSM, SWAM (w/Bronze Star), AFEM 

Days of Unauthorized Absence:  26 

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 3630600 (in absentia).

Chronological Listing of Significant Service Events:

930326:	Reenlisted for a term of 4 years at San Diego, CA.

950505:	Unauthorized absence from Amphibious Construction Battalion One.

950531:	Arrested by civil authorities and charged with 3 counts of armed robbery of civilian personnel and business in National City, Ca.  Applicant pled guilty to one count of robbery with a weapon, and one count of attempted robbery with a weapon.  Applicant waived a trial by jury.  Detained in the South Bay Detention Center, San Diego, CA

960306:	Civil Conviction:  Superior Court of California, County of San Diego for violation of PC211 - Armed Robbery
Sentence:  3 years and 8 months in Donovan State Prison Otay Mesa, CA.  Member has not appealed his sentence.

960307:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civil conviction.

960328:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
	Applicant did not object to separation.

960403:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to civil conviction.  Commanding officer’s comments (verbatim):  "Expeditious separation processing with Other Than Honorable Discharge."

960410:	BUPERS directed the applicant's discharge in absentia 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 in absentia on 960417 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, the Board found that the applicant implies that a permissive doctrine exists whereby one in the military is allowed an "isolated incident".  The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record.  No such leniency exists in the military.  The applicant is responsible for his actions and must accept the consequences of his misdeeds.  The Board will not grant relief on the basis of this issue.

The following is provided for the applicant’s edification.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (D).  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 15560C, Change 9, effective 
22 Jul 94 until 02 Oct 96), Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 “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