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

 ex-SMSN, USN
Docket No. ND02-01096

Applicant’s Request

The application for discharge review, received 020801, 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 listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030424.  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.  Discharge in absentia.

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  My Undesirable discharge, I believe, should have been a General Discharge.  I was informed by a JAG attorney that this would be the type discharge since there were no Military charges against me.  I continued with my military duties while civilian charges were pending.

Documentation

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

Statement from Applicant, dated July 5, 2002
Applicant's DD Form 214
Transmittal of and/or Entitlement to awards, dated August 21, 2000

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   USN			890817 - 930215	HON

Period of Service Under Review:

Date of Enlistment:  930216		Date of Discharge:  950221

Length of Service (years, months, days):

	Active:    02  00  06
	Inactive:  None

Age at Entry:  21			Years Contracted:  5

Education Level:  10 GED		AFQT:  54

Highest Rate:  SM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (2)	Behavior:  3.60 (2)		OTA:  3.80

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, Letter of Commendation, NER, GCM, SASM (3 Bronze Stars), SSDR, NUC, CAR, KLM (K), KLM (Saudi), JSM

Days of Unauthorized Absence:  10

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.  Discharged in absentia

Chronological Listing of Significant Service Events:

930216:	Applicant reenlisted for 5 years.

930411:	Applicant to unauthorized absence 1600, 930411.  Applicant was apprehended by civil authorities on charges of murder.

930421:	Applicant from unauthorized absence 1600, 930421 (10 days/surrendered).

941128:	Civil Conviction:  Circuit Court of the City of Norfolk, VA for violation of second degree murder.
	Pled: guilty pursuant to an Alford plea (no contest)
Sentencing on the charge is scheduled for 950222.

950126:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to civilian conviction.

950130:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

950202:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense and civilian conviction, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

960206:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to civilian conviction.

960216:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  Discharged in absentia.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged, in absentia, on 950221 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:  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the discharge proper and equitable. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor.  The official record notes he was charged with murder by civilian authorities, a serious offense for which a punitive discharge and a life sentence is authorized.  An administrative discharge board unanimously found the Applicant had committed the offense and he pleaded no contest to second degree murder.  Additionally, a military conviction is not required for a Sailor to be discharged under the provisions for commission of a serious offense.  The Applicant has not provided any credible evidence the contested discharge was inequitable or improper.  The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service.  An upgrade to general (under honorable conditions) would be very inappropriate.  Relief denied. However, the NDRB did note an administrative error on the original DD Form 214 and corrected it to reflect the Applicant’s previous three years of honorable service.

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, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. 

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  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.  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 – 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