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

  ex-ADAR, USN
Docket No. ND04-00189

Applicant’s Request

The application for discharge review was received on 20031117.  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 20040728.  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:

“I was discharged because I was arrested and put in jail by in the county where I was based (Lemoore NAS, California).  I spent 47 days in the county jail, then I was sentenced to prison in California.  Although I am currently incarcerated, I plan on getting released in about two years.  Upon my release I will be going back to finish my college for my educational degrees.  I will have a good job and the support of my family.”

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	010228 - 010418	COG
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  010419		Date of Discharge:  020403

Length of Service (years, months, days):

	Active:    00  11  15
	Inactive:  None

Age at Entry:  26			Years Contracted:  4 (12 months extension)

Education Level:  11			AFQT:  43

Highest Rate:  ADAR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*	Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

*No marks made available for review.

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:

011104:	Civil Arretst:  For violations of California Vehicle Code (CVC) 2800.2a (felony-disregard for public safety while fleeing pursuing officer) and California Penal Code (CA PC) 848a (misdemeanor-theft).
Sentence (011220):  16 months (California Vehicle Code 2800.2a), plus 6 months (California Penal Code 848), with sentence to run concurrent.  Fined $200.00 and given 69 days credit for time served.

011220:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civil conviction.

011220:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

020318:	Officer in Charge recommended discharge under other than honorable conditions by reason of misconduct due to civil conviction.  Commanding Officer’s comments:  Servicemember was convicted in Kings County Superior Court for violating California Vehicle Code 2800.2a(felony-disregard for public safety while fleeing from pursuing officer) and California Penal Code 848a (misdemeanor-theft) and is currently serving concurrent prison terms of 16 months and 6 months respectively.  His personal conduct and lack of character completely preclude any value he may have had to the U.S. Navy.  His conduct clearly warrants administrative separation under other than honorable conditions.

020326:	Commanding Officer, NAS, Lemoore 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 in absentia 20020403 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.  References (A and B) stipulate members may be separated based on a civilian conviction when the offense(s) would warrant a punitive discharge.  Mandatory processing is required for violent misconduct, which had the potential to result in death or serious bodily injury.  The Applicant was convicted in civil court for violating California Vehicle Code 2800.2a(felony-disregard for public safety while fleeing from pursuing officer) and California Penal Code 848a (misdemeanor-theft).  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 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 following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural error or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no such errors after a review of Applicant’s case.  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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any documentation for the Board to consider.  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 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 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