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

ex-STSSN, USN 
Docket No. ND04-00285

Applicant’s Request

The application for discharge review was received on 20031205.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040818.  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 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 17 years of service with no other adverse action

I have an outstanding military record, Navy Good Conduct with 3 Stars,  Navy Achievement Medal, hand selected to elite duties, excelled at all duties assigned and maintained consistent 4.0 evals thru-out military career.

I have no prior sequence offenses

Incident involved did not remove me from military duties.  I was never U.A. nor failed to perform assigned duties.

At time of discharge I was being considered for early retirement program.”

Documentation

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

Applicant’s DD Form 214
Thirteen pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	800110 - 800124	COG
	Active:   USN 			800125 - 841220	HON
		   USN			841221 - 900124	HON
		   USN			900125 - 940524	HON

Period of Service Under Review:

Date of Enlistment:  940525		Date of Discharge:  970228

Length of Service (years, months, days):

	Active:    02  09  04
	Inactive:  None

Age at Entry:  33			Years Contracted:  4

Education Level:  12			AFQT:  65

Highest Rate:  STS1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (2)	Behavior:  4.00 (2)		OTA:  4.00	4.0 evals
Performance:  3.00 (1)	Behavior:  1.00 (1)		OTA:  2.71	5.0 evals

Military Decorations:  None

Unit/Campaign/Service Awards:  NAM, NER, NEM, GCM with/3 Stars, NDSM, SSDR with 1 Star, Letter of Commendation

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 3630610.
Chronological Listing of Significant Service Events:

940525:	Applicant reenlisted for 4 years.

960626:	Civil Conviction: State of Hawaii’s Circuit Court of the First Court for violation of robbery in the second degree.
Sentence: One year incarceration and probation for 4 years.  After serving 57 days of jail time, Applicant was transferred to the daily release from custody program until June 1997.  

960909:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civil conviction.

960911:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

961209:	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 recommended discharge under other than honorable conditions and recommended discharge be suspended for 12 months.

970113:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to civil conviction.  Commanding Officer’s comments (verbatim): [I do no concur with the recommendation of the Board for suspended separation.  Although Petty Officer R_’s (Applicant’s) military performance has been exemplary, it is completely overshadowed by the felony conviction by a civilian court.  The act of violence he committed undermines all ethical standards of a Naval leader; a category to which he belongs as a first class petty officer.  Petty Officer R_ (Applicant) offers marital discord and its associated stress as the causal reason for his behavior on the night of his offense.  As a senior petty officer, he was fully aware of his actions (not under the influence of alcohol or drugs) and was also well aware of the positive steps he could have taken to get assistance with domestic problems.  The bottom line is – that stress is not a valid reason for the commission of a felony offense.  Additionally, as a result of this offense, the Navy has revoked his security clearance, reference (b), [DONCAR 5520 Ser 005GF808 of 961126 (NOTAL] which makes him ineligible for submarine duty and limits his ability to perform many of the rating assignments of a first class petty officer.  I recommend that Petty Officer R_ (Applicant) be separated from the Naval service under Other Than Honorable conditions.]

970212:	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 on 19970228 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 “17 years of service.”  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 record is marred by felony civil conviction for second degree robbery, thus substantiating the misconduct for which he was separated. The positive aspects of the Applicant’s service were found not to mitigate his misconduct.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered his discharge proper and equitable.   Relief denied.

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 the service.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  At this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade.

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.  Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 03 Oct 96 until 11 Dec 97, Article 3630610, SEPARATION OF ENLISTED PERSONNEL 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