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

ex-AA, USN
Docket No. ND02-01326

Applicant’s Request

The application for discharge review, received 20020917, 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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20030828.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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. 

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  I never received any aid or legal counsel as promised me by Lt. CDR. F_ for civil case in question which led to my discharge for "misconduct".  Your record may show that I was personally attacked while on leave in my home by assailants which caused severe damage to my right arm.  This attack on my home & person was never followed up nor was I given any counsel; legal emotional or otherwise, nor was any physical therapy ever given.  According to the UCMJ, I believe I was entitled to at least counsel, Therapy and Leave of Absence/discharge due to civil strife.  Please review this for compensation might even be due.  Thank you, attentively, J.E. M_.
The above occurrences were all related. 

Documentation

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

Letter from Applicant dated October 14, 2002
Police Record Check Certificate (In Spanish)
Transcripts (2) (In Spanish)   
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	910912 - 920413	COG
	Active:   USN 		None

Period of Service Under Review:

Date of Enlistment:  920414		Date of Discharge:  930716

Length of Service (years, months, days):

	Active:    00  03  07
	Inactive:  None

Age at Entry:  23			Years Contracted:  4

Education Level:  12			AFQT:  69

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NOB		Behavior:  NOB		OTA:  NOB

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

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:

920415:	You are being retained in the Naval Service, despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your preservice civil involvement/drug abuse.  This decision is based on the information you provided to the RECRUIT QUALITY ASSURANCE INTERVEIWER and if found not factual, this waiver is void and you can be subject to other judicial or administrative proceedings.  Assault & Battery, 6/87, Chicago, IL.  Dismissed (Interview concerning violence conducted this date)

920820:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 920819 having been an unauthorized absentee since 1201, 920720 from NAVHOSP GREAT LAKE IL.

920915:	Apprehended by civil authorities, Cook County, IL Sheriff's Department for 1 count of Robbery.

930415:	Civil Conviction:  [Circuit Court of Cook County] for violation of Illinois Rev. stat. Sec. 18-1 Par. A. 1 count of Robbery.
Sentence:  42 months in the State Illinois Department of Corrections Sheridan Correctional Center.  Maximum punishment which could be imposed for such a conviction under the UCMJ (Article 122-Robbery) is a Dishonorable Discharge, forfeiture of all pay and allowance, and confinement for ten (10) years.

930618:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civil conviction occurring during current term of military service as evidenced by civil conviction on 930415 for Robbery.

930618:	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.

930622:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to civil conviction.

930708:	BUPERS authorized applicant discharged in absentia under other than honorable conditions by reason of misconduct due to civil conviction.

930716:	Report of Return of Deserter.  Applicant apprehended by the 24th District, Police Department, Chicago, IL on 920919 (2230).  Returned to military control on 0800, 930716.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged in absentia 19930716 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 Applicant’s 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 record is void of any evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The Applicant’s service record is marred by unauthorized absence, fraudulent enlistment, and a civil robbery conviction.  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 inappropriate.  Relief denied.

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 5, effective 
05 Mar 93 until 21 Jul 94), 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