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

 ex-AA, USN
Docket No. ND02-01068

Applicant’s Request

The application for discharge review, received 020725, 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 did not designate a representative on the DD Form 293.  In the acknowledgement letter to the Applicant, he 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 030410.  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 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  On 010321 I went home to visit my family and to take care of some personal business before my ship (USS Theodore Roosevelt) left for deployment.  After I returned to work my mother called my command to inform me that the police were looking for me, to arrest me for committing a crime (010323).  The Command duty Officer told me to either turn myself in or wait until Monday and the command would turn me in.  I turned myself in and was arrested 010326.  I was then incarcerated for 13 months in lou of bond awaiting trial.  During the 13 months I was detained, I was discharged, Under Other Then Honorable Conditions, from the U.S. Navy (011126).  At the trial I was found innocent and not guilty of all charges.  It was a case of Misidentification.  I did not want to be discharged from the U.S. Navy because I loved what I did and I loved serving my country in an honest way.  I feel my discharge from the U.S. Navy was unfair and unjust.  I Respectfully Request to have my record updated on the grounds that I did nothing wrong as neither a service member nor a civilian.  I just want my Navy Life back so I may continue to serve God and Country.  Respectfully; M_ J. D_ (Applicant)

Documentation

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

Copy of DD Form 214
BCNR's ltr, dtd Jun 28, 2002, to the Applicant advising him to petition the NDRB
Applicant's petition (DD Form 149) to BCNR, dtd May 24, 2002
Memo For Record, dtd Nov 14, 2001, from TPU to Performance Division, PSD
Superior Court of State of Delaware count documents (12 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	000727 - 000801	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  000802		Date of Discharge:  011126

Length of Service (years, months, days):

	Active:    01  03  25 (Doesn't exclude lost time.)
	Inactive:  None

Age at Entry:  24			Years Contracted:  4 

Education Level:  12		AFQT:  40

Highest Rate:  AA

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:  220

*No Marks Found in service record.

Character, Narrative Reason, and Authority of Discharge (at time of issuance - discharged in absentia):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

000727:	Enlistment waiver granted for criminal record and marijuana use.

010326:	Applicant arrested by the Dover Police Department and charged with:
1) Attempted Murder in 1st Degree
2) Possession of a Firearm by a Person Prohibited
3) Possession of a Firearm during the Commission of a Felony
4) 2 counts of Reckless Endangerment (for the two (2) rounds which entered the room across the parking lot).  
Bail was set.  Applicant currently held at the Delaware Corrections Center and no trial date set.

010421:	NCIS report provided by the Applicant's command.

010622:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

010719:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.  Notation was made by the Applicant that he requested separation prior to final resolution of case.

011023:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to commission of a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

011102:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense, as evidenced by involvement with civil authorities.  AA D_ (Applicant) is currently held at the Delaware Corrections Center pending charges for attempted murder in the 1st degree, possession of a firearm by a person prohibited, possession of a firearm during the commission of a felony and two counts of reckless endangerment.  To date, AA D_ (Applicant)'s court date has not been docketed.  Commanding Officer’s comments (verbatim):  "AA D_ (Applicant) was given an opportunity to redirect his life by joining the Navy with minor civil offenses and within less than a year of his enlisted contract he has numerous civilian charges pending.  He obviously can not conform to the Navy standards.  I strongly recommend to discharge him from the Navy with an other than honorable.  Request to discharge AA D_ (Applicant) in absentia.”

011108:	Commander, Navy Region, Mid-Atlantic, Norfolk, VA directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged in absentia on 011126 under other than honorable conditions for misconduct due to commission of a serious offense (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.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor.  Administrative separation for the commission of a serious offense does not require adjudication by non-judicial or judicial proceedings; however, the offense must be substantiated by a preponderance of evidence.  In the Applicant’s case the Board found that the Applicant committed the offenses with which he was charged based upon the preponderance of evidence available for review.  The Board found no evidence that the Applicant was misidentified and therefore mistakenly charged with the crimes above.  Relief denied.

The NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Relief is therefore denied. 

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident 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.  Relief not warranted.

While the Applicant remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge, it is suggested the Applicant petition the Board for Correction of Naval Record, concerning removal of information from the service record pertaining to criminal charges, change of discharge and reenlistment code.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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