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

ex-EM2, USN
Docket No. ND03-01249

Applicant’s Request

The application for discharge review was received on 20030717.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  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 20040617.  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

Applicant’s issues, as stated on the application:

1.  “My discharge was inequitable because it was based on one isolated incident in 66 months of service with no other adverse action.  I was always given high review during my enlistment.  My discharge resulted from incident that occurred outside of my duty in my efforts to protect a fellow shipmate from a more severe incident, this gave me an administrative discharge for a more agreeable separation.”

Documentation

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

Copies of DD Form 214 (2)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	951129 - 951210	COG
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  951211		Date of Discharge:  010225

Length of Service (years, months, days):

	Active:    05  02  15
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  88

Highest Rate:  EM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.75 (4)	Behavior:  3.25 (4)		OTA:  3.39

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, GCM

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 1910-144 (formerly 3630610).

Chronological Listing of Significant Service Events:

001113:	Civil Conviction:  [York County General District Court for maliciously or with intent to defraud an insurance company or a person, burn or destroy by the use of explosives, or aid, counsel, or procure the burning or destruction of a 1991 Mazda Miata automobile valued at $200.00 or more.
Charges reduced to misdemeanor, destroying property.
Sentence:  12 months in jail imposed with all suspended and on probation for 2 years.

001218:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civil conviction.

001218:	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.

010130:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to civil conviction.

010214:	Commander, Carrier Group EIGHT authorized 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 20010225 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 available 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 Applicant states his discharge was based on one isolated incident in 66 months of service.  A characterization of service of other than honorable 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.  A Civil Conviction from York County General District Court marred the Applicant’s service record.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  An upgrade to honorable is inappropriate.  It must be noted that most Sailors serve honorably and well and therefore earn honorable discharges.   In fairness to those Sailors, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  Relief 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 additional documentation to support any claims of post-service accomplishments or any other evidence relating 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 31, dated 
20 Feb 01, effective 24 Jan 01 until 8 Jul 01, 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