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

 ex-OSSN, USN
Docket No. ND02-00258

Applicant’s Request

The application for discharge review, received 020114, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020815.  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 - convicted by a civil court for offense(s) occurring during current term of military service, authority: MILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  Dear Sir
I was very young and immature and my discharge has bothered me all these years.  Could you please find it in your heart and change my discharge to honorable or general under honorable conditions.  I would be very thankful.

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:   USNR 		851105 - 881103	HON
	Inactive: USNR (DEP)	850904 - 851104	COG

Period of Service Under Review:

Date of Enlistment:  881104		Date of Discharge:  890915

Length of Service (years, months, days):

	Active:    00  10  11
	Inactive:  None

Age at Entry:  21			Years Contracted:  4 

Education Level:  12			AFQT:  24

Highest Rate:  OS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NOB		Behavior:  NOB		OTA:  NOB

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, SSDR, BATTLE"E"RIBBON

Days of Unauthorized Absence:  None

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 term of military service, authority: MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

890309:	Civil Conviction:  [Superior Court of the State of California, Alameda County] Violation of California penal code section 245:  Possession of a firearm, possession of a loaded firearm and discharge of a firearm.
Sentence:  Defendant having been convicted on 890412 by his plea of guilty of the offense of a felony, to wit: a violation of section 245 (A)(2) of the penal code of California, as charged in the first count of the first amended complaint.  Defendant admitted having used a firearm, to wit: a handgun in the commission of the offense charged in the first count.  On motion of the District Attorney and in the furtherance of justice, the court ordered the second count dismissed, and the cause was certified to this court for sentence.  The sentence was suspended for a period of three (3) years, during which time the defendant is placed under the care, custody and control of the probation Officer of Alameda County subject to the following terms and conditions, to wit: Defendant shall (1) Serve the first nine (9) months of the said probationary period in the Alameda County Jail.  Credit for time served of 55 days; (2) Report forthwith to the probation Officer of Alameda County and thereafter as directed by not less frequently than once each month; (3) Follow all directives of the probation Officer; (4) Seek and maintain regular employment and/or schooling and not change place of employment or residence without first obtaining the permission of the probation Officer, (5) Obey all laws of the community and be of good conduct; (6) Not use or in any way traffic narcotics or dangerous drugs; (7) Submit to such counseling treatments or tests as directed by the probation Officer including urinalysis; (8) Make restitution to and through the probation Officer in such monthly installments as directed by said Officer; (9) Pay a restitution fine of $100.00 plus $100.00 to the restitution fund and through the probation Officer in such monthly installments as directed by the said Officer; (10) If arrested report in writing to the probation Officer with seven (7) days of said arrest and use true name, date of birth and address; (11) Defendant remanded into the custody of the Sheriff of Alameda County; (12) Not to annoy, harass or molest P____ C___ or M___ R____, and (13) Not to own, use or possess any firearms or other deadly or dangerous weapons.

890623:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civil conviction.

890623:  	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.

890802:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to civil conviction.  

890905:	CNMPC 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 in absentia on 890915 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).

The Applicant presented only one issue for review.  The Board found the Applicant's age, education level, and test scores qualified him for enlistment.  While he may feel his immaturity was a factor that contributed to his actions, the record clearly reflects his willful disregard for the law and demonstrated he was unfit for further service.  The record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief on this basis is denied.

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.  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.  The Applicant failed to provide any documentation to warrant an upgrade to his discharge.

The Applicant is reminded that the period of eligibility for a personal appearance hearing is 15 years from the date of discharge.  The application package must be submitted to the NDRB prior to the expiration of the 15 year period.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560A, Change 8, effective 
21 Aug 89 until 14 Aug 91) 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 “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