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

ex-MSSA, USN
Docket No. ND01-00602

Applicant’s Request

The application for discharge review, received 010403, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed.  The applicant requested a documentary record discharge review.  The applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011031.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character and reason for discharge shall not change.  The discharge shall remain:  GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-144 (formerly 3630610).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  (Equity Issue) This former member avers that his discharge is too harsh because is misconduct was not severe enough to have warranted separation.  On this basis, he proffers that upgrade to full Honorable is merited.

2.  (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

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 		920715 - 960616	HON
	Inactive: USNR (DEP)	920610 - 920714	COG

Period of Service Under Review:

Date of Enlistment:  960617		Date of Discharge:  980515

Length of Service (years, months, days):

	Active:    01  10  26
	Inactive:  None

Age at Entry:  25			Years Contracted:  3

Education Level:  12			AFQT:  42

Highest Rate:  MSSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM, NDSM, SSDR, NER, MUC (2), KLM

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MILPERSMAN, Article 1910-144 (formerly 3630610).

Chronological Listing of Significant Service Events:

960617:	Reenlisted for term of 3 years on-board USS KITTY HAWK.

980416:	NJP for violation of UCMJ, Article 86: Failure to go to appointed place of duty on 20Mar98, violation of UCMJ, Article 111: Driving while intoxicated on 20Mar98.
	Award: Restriction for 45 days, reduction to MSSA.  No indication of appeal in the record.

980420:	Civil Conviction: Ventura County, California Municipal Court for violation of driving while intoxicated.
Sentence: Fined $1,968.00.

980507:	Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to civil conviction.

980507:	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.

980521:	Commanding officer directed discharge general (under 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 980515 general (under 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).

The applicant’s first issue states:  “(Equity Issue) This former member avers that his discharge is too harsh because is misconduct was not severe enough to have warranted separation.  On this basis, he proffers that upgrade to full Honorable is merited.”  The NDRB disagrees that the discharge was too harsh and the misconduct did not warrant separation.  According to the UCMJ, the Navy considers drunken driving an offense punishable by court martial.  The applicant could have received a punitive discharge for his misconduct, but instead received a non-punitive discharge, characterized as General (Under Honorable Conditions).  The record shows the applicant was properly processed for separation for misconduct due to a civil conviction.  The Board determined the discharge was proper and equitable.  Relief is not warranted.

The applicant’s second issue states:  “(Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.”  The applicant provided no documentary evidence to support this issue.  The Board had no grounds to consider relief based on post service conduct.  Relief is not warranted.

The following is provided for the benefit of the applicant.  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 clemency, based on post-service conduct.  The applicant did not provide any of these documents.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.

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 “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