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

 ex-DN, USN
Docket No. ND02-01171

Applicant’s Request

The application for discharge review, received 020815, 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 030515.  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.  Discharged in absentia.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  I would like my discharge changed to Honorable.  The appellant completed a 2 YO enlistment.  Then reenlisted, completed an "A" school received my E4 pay grade and performed above average duties.  I was only 10 months into 4-year enlistment when the so call civilian arrest took place.  My discharge from the Navy came from a civilian conviction; the US Navy should not give me a dishonorable based on civilian law.  I was wrongfully convicted because of the Navy.  I informed the Navy of my problems and I requested to be moved at my expense, and I found a person to swap orders, and I was denied.  My enlisted performance evaluation report LPH 11 New Orleans E-Div 3.8 special achievement Basic DC qual, 3-m 301 qual I qualified for 2 watches sounding and security (4301) and IC RM Op. (43137-8AQS).  My performance in the dental Dept 3.8 and 3.0 in personal behavior and military bearing.  I was apart of Operation restore hope in Somalia I wore the armed Forces Expeditionary Medal, Sea Service Ribbon, Battle E Ribbon I have a commanding officer letter of appreciation. My discharge should be based on what I did in the Navy not what happened to me off base, the civilian court injustice me I hope I receive justice from the Navy by receiving an honorable discharge for my hard work.  I have supporting documents but I'm unable to copy them due to my incarceration every thing I said is in my file.

Documentation

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

Applicant's DD Form 214 (4 copies)
Honorable discharge certificate, dated September 6, 1994
Certificate of Commendation
Enlisted Performance Evaluation Report dated January 21, 1994
Enlisted Performance Evaluation Report for February 1, 1994 to December 5, 1994
Certificate of reenlistment dated September 7, 1994
Certificate of graduation, dated April 21, 1995
Certificate of appointment, dated April 21, 1996
Enlisted Performance record
Enlistment guarantee, dated October 23, 1991

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   USNR		911023 - 940906	HON

Period of Service Under Review:

Date of Enlistment:  940907		Date of Discharge:  960815

Length of Service (years, months, days):

	Active:    01  11  09	Does not exclude lost time
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  39

Highest Rate:  DT3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.80 (1)	Behavior:  3.60 (1)		OTA:  3.80

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, AFEM, NER

Days of Unauthorized Absence:  399

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

950710:	Applicant arrested by San Diego Police at 2100, 950710.  Applicant charged with homicide.

960617:	Civil Conviction: Superior Court of the State of California for violation of first degree murder and attempted murder.
Sentence:  No information found in service record.

960707:	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.

960708:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civil conviction as evidenced by your convictions of first degree murder and attempted murder on 17 June 1996.

960716:	Naval Investigative Service report in service record.

960729:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to civil conviction.  Commanding Officer’s comments (verbatim):  [DT3 S_ (Applicant’s) convictions of first degree murder and attempted murder makes him ineligible to serve in the naval service.  Therefore, I strongly recommend his immediate separation from the naval service and that the characterization of discharge be under other than honorable conditions.]

960808:	Commander, Naval Base San Diego, CA 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 960815 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:  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 convicted of first degree murder and attempted murder by civilian authorities, a serious offense for which a punitive discharge and a life sentence is authorized.  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 honorable 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. 

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