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

ex-AD2, USN
Docket No. ND03-01225

Applicant’s Request

The application for discharge review was received on 20030711.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a personal appearance discharge review before a traveling panel closest to Memphis, TN.  The Applicant listed the Veterans of Foreign Wars (VFW) as the 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 DC area.  The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge 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 of the discharge shall not change.  The discharge shall remain:  UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-144 (formerly 3630610).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

No issues were submitted by the Applicant. 

Issues submitted by Applicant’s counsel/representative (Veterans Of Foreign Wars):

1.  “Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application.  His records were reviewed on Nov 7, 2003 and the following comments are hereby submitted:

We concur with the Applicant’s contention that his discharge be upgraded.

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:

Applicant’s DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

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

	Active:   USN			710910 – 740909	HON
		   USAF		850816 – 870910	HON
	Inactive: USNR (DEP)	870911 - 880104	COG
	Active:   USN 			880105 - 901023	HON
		   USN			901024 – 950119	HON
		   USN			950120 – 971209	HON

Period of Service Under Review:

Date of Enlistment:  971210		Date of Discharge:  000726

Length of Service (years, months, days):

	Active:    02  07  17
	Inactive:  None

Age at Entry:  45			Years Contracted:  3

Education Level:  13 1/2		AFQT:  47

Highest Rate:  AD2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.20 (5)	Behavior:  2.20 (5)		OTA:  2.91

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM (3), MUC, AFEM, NDSM (2), BER, SSDR (2), NUC, VSM, VCM, Letter of Appreciation

Days of Unauthorized Absence:  100

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

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

Chronological Listing of Significant Service Events:

990430:	Applicant failed PRT due to run.

991202:	Applicant apprehended by Coronado Police Department.

991203:	Applicant extradited to County of Madison, IL Police Department.

991209:	U.S. Naval Criminal Investigative Service Report.

000313:	Civil Conviction:  Third Judicial Circuit Court, Madison County, IL for violation of criminal sexual assault.
Sentence: Probation for 3 years.

000331:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civil conviction.

000331:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

000403:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 2057, 991202 to 1700, 00313 (100 days).
	Award: Restriction and extra duty for 45 days, reduction to AD3.  Punishment suspended for 6 months.  No indication of appeal in the record.

000606:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a civil conviction, that the misconduct warranted separation, and by a vote of 2 to 1, recommended discharge under other than honorable conditions.

000612:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to civil conviction.

000710:	CNPC 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 20000726 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.   The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted.  There is no evidence of impropriety or inequity in the Applicant’s discharge.  The Applicant’s misconduct is clearly documented.  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 15560C), Change 28, effective 30 Mar 00 to 21 Aug 00, 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