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

 
ex-MASA, USN
Docket No. ND03-01193

Applicant’s Request

The application for discharge review was received on 20030702.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to Convenience of the government.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20040514.  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 and the reason for discharge shall not change.  The discharge shall remain:  GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-144 (formerly 3630610).

The NDRB did note administrative error(s) on the original DD Form 214.  Block 12a, Separation Date This Period, should read:  "020702" vice "020701" and Block 12c, Net Active Service This Period, should read:  "00  11  02" vice "00  11  01,." and Block 24, Character of Service, should read:  "GENERAL (UNDER HONORABLE CONDITIONS)" vice "GENERAL(UNDER HONORABLE CODITIONS)."  The Commander, Naval Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“The following issues are the reasons I believe my discharge should be upgraded to honorable.

1.  My record of convictions by civil authorities while I was in service indicates only one offense that had adjudication (not a conviction) of guilt withheld and probation terminated prior to my discharge from the United States Navy as presented in my background above.
2.  My record of NIP’s/Article 15s indicates no offenses.
3.  My average conduct and efficiency ratings/behavior and proficiency marks were good (overall trait average of 3.5) with a recommendation for promotion.  My evaluation from Naval Station Mayport does not support or justify Captain S_’s “Comments of the Commanding Officer” in his letter (Supporting Document 2) recommending my administrative separation.  I have struggled since my discharge reconciling how my only evaluation (Supporting Document 7) can recommend me for promotion while Captain S_ states my “conduct has been detrimental to the good order and discipline of Naval Station Mayport.”  Further, Captain S_ states in his comments that my “civilian conviction warrants his immediate separation from Naval Service” when in fact I fulfilled every requirement of my probation that was assigned while “my adjudication of guilt was withheld” and subsequently my probation of 12 months was terminated in only 4 months due to my compliance and completion of all that was required of me.
4.  My Navy record is without flaw.
5.  I have been a good citizen since discharge.  My wife and I reconciled immediately after my discharge and have both been gainfully employed.  We further have put our lives in order with active participation in our local church as evidenced by the character references I have included as Supporting Documents 8-11.

Request:

I respectfully request you provide a favorable answer to my request for my General Discharge to be upgraded to Honorable.  If you disagree, please explain in detail why you disagree.  The presumption of regularity that might normally permit you to assume that the service acted correctly in characterizing my service as less than honorable does not apply to my case because of the evidence I am submitting.”

Documentation

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

Applicant’s DD Form 214 (Member 1 and 4)
Nine pages from Applicant’s service record
Certificate of participation in anger management, dated February 14-15, 2002
Certificate of participation in stress management, dated March 16, 2002
Certificate of completion, Alternatives to violence, dated June7, 2002
Termination of probation, dated June 20, 2002
Evaluation Report and Counseling Record, dated July 2, 2002
Job/character reference, dated April 28, 2003
Character reference, dated June 22, 2003
Character reference, dated Jun 18, 2003
Character reference from Applicant’s wife, undated

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	961206 - 970225	ELS
		   USNR (DEP)	010608 - 010730	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  010731		Date of Discharge:  020702

Length of Service (years, months, days):

	Active:    00  11  02
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  12			AFQT:  53

Highest Rate:  MASA

Final Enlisted Performance Evaluation Averages (number of marks):*

Performance:  4.00 (1)	Behavior:  3.00 (1)		OTA:  3.50

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

*Marks extracted from supporting documents provided by the Applicant.

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MILPERSMAN, Article 1910-144 (formerly 3630610).

Chronological Listing of Significant Service Events:

020206:	Civil Conviction: Duval County Courthouse for violation of battery/domestic on 020205.
	Pled: Guilty.  Adj guilt withheld.
Sentence: Fine $123.00, probation for 12 months.  Conditions: no contact with victim, BIP Navy program accepted.

020328:	Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to commission of a serious offense and misconduct due to civilian conviction.

020328:	Applicant advised of 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.

020522:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and civilian conviction.

020611:	Commander, Navy, Region Southwest 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 on 20020702 with a general (under 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).

Issues 1-4.   The Applicant states his discharge was based on one offense “that had adjudication (not a conviction) of guilt withheld” and that his “record of NIP’s/Article 15s indicates no offenses.” The civilian authorities treat some offenses with leniency because they are a first time incident on an otherwise clear record; however, despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s service is marred by a guilty plea to domestic battery, thus substantiating the misconduct for which he was separated.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  Further, mandatory processing for separation is required for misconduct, which results in or had the potential to result in death or serious bodily injury.  Finally, servicemembers may be separated for actions tantamount to findings of guilt, to include adjudication withheld and deferred prosecution.  Relief denied.

Issue 5.  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 limited documentation of his post-service.  The applicant's efforts need to be more encompassing than those provided.  For example, the applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities, in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided sufficient documentation of good character and conduct.  Therefore, no relief will be granted.  

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 her 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 15560C), Change 33 effective 
9 Jul 01 until 21 Aug 02, Article 1910-144 (previously 3630610), Separation by Reason of Misconduct - Civilian Conviction. 

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