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

  ex-ENFN, USNR
Docket No. ND03-00396

Applicant’s Request

The application for discharge review was received on 20030107.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing discharge review before a traveling panel closest to San Diego, CA.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearings are held in the Washington, D.C. area.  Subsequent to the application, the Applicant obtained representation by the Veterans of Foreign Wars. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031215.  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 - 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 stated

Applicant’s issues, as stated on the application:

1.  “Issue: Upgrading my discharge to Honorable Discharge.  A screening of my Navy Medical Record from February 1988 need to be reviewed to show my mind set at time offense committed.  My medical conditions at time of offense in April 1988 was unstable.  The record of my hospital stay will show evidence of this fact.

During that time, I was under the care of the San Diego Naval Hospital and being treated as an in-patient for psychiatric and alcohol program.  While I was hospitalized, not knowing what I was doing, I walked away from the hospital and I ended up committing a felony.  Thereafter, I pleaded guilty for that incident.  The court convicted and sentenced me to serve 9 years prison.  On December 1989, while serving time in prison, I received an Other Than Honorable Discharge given by the Navy for a civil conviction I have committed.

On 17 May 1993 I was paroled and released early for good behavior.  Thereafter, I was able to survive by attending schools.  In 1994, I went to San Diego State University and enrolled in a bachelor degree program.  In August 2000, I completed and received a Bachelors Degree in Mechanical Engineering (see attached copy of my diploma)

On 24 August 2000, I was granted a Certificate of Rehabilitation by the Superior Court of San Diego (see attached document).  The certificate indicate that I am rehabilitated and fit to exercise all the civil and political rights of a citizenship.  By virtue thereof, the court recommended the Governor of California to grant me a full pardon (please note: my application for full pardon is still in the governors office and expected to be signed soon by the Governor o California)

Currently, I am still in school and enrolled in a master degree program.  My long goal is to become a professional engineer and hopefully to serve and to work for the government someday (Please see copies of statement from people who knows me well).

As it can be seen, my Navy medical record should show that my mental condition was unstable when I committed an offense.  Since I was released in prison, I have exhibited a good moral character.  I have lived an honest and upright life.  I have conducted myself with sobriety and conformed to and obey all the laws of the land therefore, I respectfully request that my last discharged (see attached copy of December 1989 discharge) be upgraded to Honorable Discharge.”

Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS): 

2.  “Since the Applicant release from the penal system, his post service has been noteworthy.  He has Been completely rehabilitated.  He has earned a Bachelor of Science in Mechanical Engineering.  In Addition he is now working on his Master Degree.  Furthermore, as attested to by friend and Professionals who no him, Mr S__ have had a complete change of character.  We concur With his contention that his discharge be upgraded based on his post service conduct.

We refer this case to the Board for their careful and compassionate consideration and request the Applicant’s discharge be reviewed for upgrading his discharge to General Discharge.”

Documentation

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

Copies of DD Form 214 (4)
Copy of Bachelor of Science in Applied Arts and Sciences Mechanical Engineering from San Diego State University
Copy of Certificate of Rehabilitation from Superior Court of the State of California
Character Reference Letter dated November 8, 2002
Statement of Good Behavior from SHCM W_ Q. P_, USN
Reference Letter dated April 16, 2001
Letter of Recommendation dated June 3, 2001
Unofficial Transcript from San Diego State University (5 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	None
	Active:   USN 			750714 - 780806	HON
	Active:   USN			780807 – 830407	HON
	Active:   USN			830408 – 870407	HON

Period of Service Under Review:

Date of Enlistment:  870428		Date of Discharge:  891212

Length of Service (years, months, days):

	Active:    01  02  26
	Inactive:  00  04  17

Age at Entry:  23			Years Contracted:  4 

Education Level:  15			AFQT:  41

Highest Rate:  EM1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NOB*		Behavior:  NOB		OTA:  NOB

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM(2), SSDR, NAVY”E”

Days of Unauthorized Absence:  365

*None obtained for the period under review.

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:

870915:	Reenlisted at NR SBU 13 for 4 years for TAR recall orders.

880930:	Civil Conviction:  [Superior Court of California, County of San Diego, State of California] for violation of California Penal Code 187(a) in conjunction with Penal Code 664 attempted murder in the second degree.  Penal Code 12022(b) enhancement for use of deadly or dangerous weapon in the commission of a felony and Penal Code 12022.7 enhancement for infliction of bodily injuries in the commission of a felony.
Sentence:  9 years in California Institution for Men – Chino, other orders Restitution to victim $4,790.25 per Government Code 13967 (c) and Restitution/Fine $500.00 per Government Code 13967 and Penal Code 2085.5.

881102:	NJP for violation of UCMJ, Article 86: Unauthorized absence from NAVHOSP SDIEGO, CA 880415 until 880422 (7 days).
	Award:  Forfeiture of $100.00 pay per month for 2 months, extra duty for 30 days, reduction to E-5 (suspended for 3 months).  No indication of appeal in the record.

890731:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civil conviction as evidenced by Applicant’s civilian conviction of 30 September 1988.  Notification sent via certified mail.  These letters were received, but Applicant failed to acknowledge the contents.  His failure to ackowledge the contents constituted the waiver of all rights.
.
890906:	Commanding Officer recommended discharge in absentia under other than honorable conditions by reason of misconduct due to civil conviction.  Applicant refused to speak with detailed defense counsel.

891205:	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 19891212 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.  While the Applicant may feel that his medical condition at the time of his civil offense was a factor that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

Issue 2.  The Applicant’s discharge characterization accurately reflects his service to his country for the enlistment under review.  The discharge was proper and equitable.  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.  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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate the offenses for which he was discharged.  Relief not warranted.

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