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

 
ex-AOAA, USN
Docket No. ND03-00632

Applicant’s Request

The application for discharge review was received on 20030226.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests 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 20040712.  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.  “To the Honorable Discharge Review Board; I request to have my discharge up-graded.  I have been incarcerated the entire time since my discharge from the United States Navy. I have managed to achieve two Associates Degrees, and one Bachelors Degree and a Sanitation License.  I will be returning to society within a year.  I greatly appreciate any help you can provide for me.  Thank you for your time and consideration.”

Documentation

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

Copy of License Permit Certification Registration from State of Illinois Department of Public Health
Copy of Associated of Applied Science Degree from Mac Murray College
Copy of Associated of General Studies Degree from Mac Murray College
Copy of Bachelor of General Studies Degree from Roosevelt University
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	870715 - 871208	COG
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  871209		Date of Discharge:  910726

Length of Service (years, months, days):

	Active:    01  01  01
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  48

Highest Rate:  AOAA

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:  871

*Not Observed

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:

890203:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 890129 having been an unauthorized absentee since 0600, 881228 from USS DWIGHT D EISENHOWER CVN-69.

890307:	UA from USS DWIGHT D EISENHOWER (CVN-69) 0600, missed ship movement at 1600, 890309.  Intention unknown.

890410:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 890407 having been an unauthorized absentee since 0600, 890307 from USS DWIGHT D EISENHOWER CVN-69.

891003:	Apprehended by Chicago Police Department, Chicago, IL at 0730, 891003 for civil charges of homicide/murder.

910321:	Civil Conviction:  [Circuit Court of Cook County, Illinois] for (2 counts) of First Degree Murder.
Sentence:  30 years in jail.

910508:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civil conviction as evidenced by the State of Illinois Circuit Court of Chicago Docket NO. 89CR23341 of March 1991.

910626:  	Applicant refused to sign Statement of Awareness.

910711:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to civil conviction.

910722:	BUPERS 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 19910726 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.  When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by three periods of unauthorized absence totaling 871 days.  Further, the Applicant was convicted in a civil court of first degree murder.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV).  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural error or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, is considered.  The applicant provided documentation of educational and professional pursuits in documenting his post-service.  The Board has determined that the Applicant’s post service achievements do not mitigate the seriousness of his offenses.  Therefore, relief is denied.

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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  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