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

ex-AN, USN
Docket No. ND01-01016

Applicant’s Request

The application for discharge review, received 010731, requested that the characterization of service on the discharge be changed to general/under honorable conditions or entry level separation or uncharacterized.  The applicant requested a personal appearance hearing in the National Capital Region.  The applicant listed the American Legion as the representative on the DD Form 293.  In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020221.  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).  Discharged in absentia.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  (Equity Issue) This former member opines that his drug and alcohol use at the time of his civil offense extenuated his misconduct.

2.  (Equity Issue) This former member further avers that his due process rights were not properly explained to him.

3.  (Equity Issue) This former member finally 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:

Education Progress Report dated December 13, 2000 (2)
Copy of work supervisor's report dated June 30, 2001 (2) 
Copy of DD Form 214
Statement from applicant
Four pages from applicant's service record
Character reference dated September 18, 1999
Character reference, undated
Character reference dated September 18, 1999
Character reference dated September 18, 1999
Character reference dated September 18, 1999
Two copies of certificates of achievement dated December 13, 2000
Copy of certificate from American Bible Academy dated May 1, 2001
Copy of certificate from American Bible Academy dated March 1, 2000
Two copies of certificates from American Bible Academy dated November 22, 2000
Copy of certificate from American Bible Academy dated February 12, 2001
Copy of certificate from American Bible Academy dated March 20, 2001
Copy of certificate from American Bible Academy dated July 10, 2001

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	980812 - 980827	COG

Period of Service Under Review:

Date of Enlistment:  980828		Date of Discharge:  000405

Length of Service (years, months, days):

	Active:    01  07  08  (does not exclude IHCA/time lost)
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  66

Highest Rate:  AN

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:  395

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 1910-144 (formerly 3630610).  Discharged in absentia.

Chronological Listing of Significant Service Events:

990215:	Applicant apprehended by National City Police Department at 0420, 15Feb99 and is being held by civil authorities pending charges.

990326:	Applicant released on bail and surrendered to TPU, Naval Station, San Diego, CA at 1500, 26Mar99 (39 days).

990405:	Applicant appeared for hearing and had bail revoked 1130, 5Apr99.

991012:	Civil Conviction:  Superior Court of San Diego for violation of California Penal code 664/187 - attempted murder, PC 12022 (b)(1) - using a dangerous or deadly weapon, to wit: a knife, and PC 12022 (1)(a) - personally inflicted great bodily injury.
Sentence: Confinement for 11 years.

991216:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and civil conviction.

991216:	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.

000215:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and civil conviction. 

000309:	Chief of Naval Personnel forwarded discharge recommendation to Assistant Secretary of the Navy (Manpower and Reserve Affairs).

000329:	Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved discharge under other than honorable conditions by reason of misconduct due to civil conviction.

000403:	CNPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to civil conviction.  Discharged in absentia.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged, in absentia, on 000405 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 being under the influence of drugs and alcohol at the time of the applicant’s civil offense is not a sufficient mitigating circumstance to warrant an upgrade to his discharge.  Relief denied.

Issue 2. On 991216, the applicant was 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.  The record is devoid of evidence that shows the applicant was not afforded his due process or that he was not responsible for his conduct and should not be held accountable for his actions.  Relief denied.

Issue 3.  The applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  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.  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.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 25, effective 16 Sep 99 to 29 Mar 00, 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