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

  ex-EMFN, USNR (TAR)
Docket No. ND04-00967

Applicant’s Request

The application for discharge review was received on 20040526.  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.  The Applicant did not list any representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20050916.  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 - convicted by a civil court for offense(s) occurring during current term of military service, authority: MILPERSMAN, Article 3630600.  
PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I was suffering from severe psychologica1 disorder during the time my discharge was processed.  Because I was not functioning normally during that time, I was not able to communicate with the navy personnel and/or defense counsel and so they just discharged me on absentia hearing.

Had I been functioning normally and able to communicate with the navy personnel or defense counsel during that time, I would probably receive a discharge better than the “Other Than Honorable” discharge.  Please note: I was incarcerated in jail during that time they processed my discharged.  I will try to provide supporting documents for my psychological disorder problem during that period, if I can get a copy of my medical record from the California Department of Corrections.  Attached is a copy of the denial my request for upgrade of discharge.”

Applicant’s issues, submitted at the time of the hearing:

“Equity based on post-service accomplishments.  This issue does not supercede those previously submitted.”

Documentation

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

SDSU unofficial transcript, dated September 16, 2002 (3 pages)
Southwestern College unofficial transcript, dated September 14, 2005
San Diego Community College unofficial transcript, dated September 14, 2005 (3 pages)
Dean’s Honor List, academic year 2002-2003
ASE Certification, Master Automobile Technician, June 30, 2005
ASE Certification, Advanced Level Specialist, dated August 31, 2004
California Bureau of Automotive Repair, Licensed Smog  Technician, undated
Examination Score Report, Advanced Emission Technician Exam, dated February 24, 2005
Southwestern Community College Automotive Program Certificates of Completion (8 pages)
Applicant’s DD Form 214
Letter from Applicant, dated October 19, 2004
Psychiatric evaluation, dated December 21, 1988
Medical statements from CMC-West, dated October 17, 1991
Certificate of rehabilitation, dated August 24, 2001
Degree of Bachelor of Science in Applied Arts and Sciences, dated August 18, 2000
Statement from clinical psychologist, dated November 8, 2002
Fifty-six pages of medical records

PART II - SUMMARY OF SERVICE

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

	Active:   USN 			750714 - 780806	HON
		   USN			780807 - 830407	HON
		   USN			830408 - 870407	HON
	Inactive: USNR		870428 – 870914	HON

Period of Service Under Review:

Date of Enlistment:  870915		Date of Discharge:  891212

Length of Service (years, months, days):

	Active:    02  02  28	(Does not exclude lost time)
	Inactive:  None

Age at Entry:  35			Years Contracted:  4

Education Level:  15			AFQT:  41

Highest Rate:  EM1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NOB*			Behavior:  NOB		OTA:  NOB

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM (2), SSDR, NER

Days of Unauthorized Absence:  372 (Includes time while IHCA.)

*Not observed for the period under review.

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct -convicted by a civil court for offense(s) occurring during term of military service, authority: MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

870915:	Applicant reenlisted at NR SBU 13 for 4 years under the TAR Program.

880415:	Applicant to unauthorized absence 1900, 880415.

880422:	Applicant from unauthorized absence 0830, 880422 (6 days/surrendered).

880930:	Civil Conviction:  The Superior Court of California, for violation of Attempted murder, second degree, enhancement for use of deadly or dangerous weapon in commission of a felony, enhancement for infliction of bodily injuries in the commission of a felony.
Sentence: California Institution for Men - Chino for 9 years, restitution to victim $4,790.25 and restitution/fine $500.00.

881102:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 880415 to 880422.
	Award: Forfeiture of $100 per month for 2 months, extra duty for 30 days, reduction to E-5.  Reduction suspended for 3 months.  No indication of appeal in the record.

881210:	Applicant to unauthorized absence 1000, 881210.

881218:	Applicant in hands of civil authorities 1000, 881218.

890509:	SJA requested status of Applicant’s appeal from Clerk of Superior Court, San Diego, County, CA.  890518:  Applicant did not file an appeal of civilian conviction.

890509:	Applicant notified of intended recommendation for an administrative discharge by reason of misconduct due to civil conviction as evidenced by your civilian conviction of 880930 for violation of attempted murder in the second degree, enhancement for use of deadly or dangerous weapon in the commission of a felony and enhancement for infliction of bodily injuries in the commission of a felony.  If separation is approved, the characterization of the Applicant’s service may be under other than honorable conditions.  [Notification sent via certified mail to Applicant at Avenal State Prison, Avenal, CA.]

890627:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to civil conviction.

890719:	CNMPC directed reprocessing of the Applicant for misconduct by reason of civilian conviction.  The cover letter sent to the Applicant inappropriately advised him that failure to respond would result in military hold and court-martial.

890731:	Applicant re-notified of intended recommendation for an administrative discharge by reason of misconduct due to civil conviction as evidenced by the Applicant’s civilian conviction of 880930 for violation of attempted murder in the second degree, enhancement for use of deadly or dangerous weapon in the commission of a felony and enhancement for infliction of bodily injuries in the commission of a felony.  If separation is approved, the characterization of the Applicant’s service may be under other than honorable conditions.  [Notification sent via certified mail to Applicant at Avenal State Prison, Avenal, CA.]

Undated:	Applicant advised of rights and having refused to consult with counsel certified under UCMJ Article 27(b).  Applicant refused to acknowledge the statement of awareness and failed to respond to the notice within thirty days.   Such failure constitutes a waiver of all rights.  Applicant refused to speak with detailed defense counsel.

890906:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to civil conviction.  Commanding Officer’s comments (verbatim): (1) This case is being reprocessed as directed by COMNAVMILPERSCOM Washington DC 191854Z Jul 89.  Petty Officer S_ (Applicant) was provided thirty days to respond to the letter of Notification and Statement of Awareness; he has failed to acknowledge receipt for the second time.  Enclosure (3), a copy of receipt for certified mail indicates these letters were received.  During the previous processing the member had refused to speak to detailed defense counsel.  Again, attempts were made by the detailed defense counsel, and member still refused to speak to detailed defense counsel.
	(2) Enclosure (8) [Copy of Superior Court of California document case #CR-96356] is provided to establish that the member did not file an appeal of his civilian conviction.  Petty Officer S_ (Applicant) is being administratively separated in absentia for his civilian conviction and sentence of confinement for nine years.  The sentence is being served at Avenal State Prison, Avenal, California.  Member has demonstrated total inappropriate behavior for that of a petty officer in the naval service.  This case is forwarded for your approval on my strongest recommendation that he be discharged in absentia for his civilian conviction under Other Than Honorable conditions.

891205:	CNMPC directed the Applicant's discharge in absentia under other than honorable conditions by reason of misconduct due to civil conviction.

031215:	NDRB documentary record review Docket Number ND03-00396 conducted.  Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged, in absentia, on 19891212 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).

The Applicant contends that a psychological disorder prevented him from effectively communicating with his defense counsel resulting in an under other than honorable conditions discharge.  The evidence of record indicates the Applicant was convicted of attempted murder in the second degree, enhancement for use of deadly or dangerous weapon in the commission of a felony and enhancement for infliction of bodily injuries in the commission of a felony by the state of California.  The Applicant was sentenced to a period of confinement by civil authorities for 9 years, of which he served approximately 5 years.  The Applicant was processed and notified for separation by reason of civilian conviction.  His notification occurred while he was serving his prison sentence in California and he was ultimately discharged in absentia.  There is no evidence in the record, nor has the Applicant produced any evidence, other than his testimony, to support the contention that his psychological condition impaired his ability to effectively participate in his administrative separation processing.  The NDRB concluded that there was little chance on the Applicant’s part of receiving a more favorable discharge given the offenses for which the Applicant was convicted.  As such, the NDRB concluded, by unanimous vote, that an under other honorable conditions discharge was proper and equitable given the seriousness of the Applicant’s discharge.  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 Naval service.  The NDRB is authorized 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 could 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.  The Board received and considered all of the Applicant’s submissions, including his recommendation for pardon, letters of recommendation, bachelor’s degree, other educational certificates and medical records.  After careful consideration, the Board concluded the Applicant’s post-service achievements have been insufficient to mitigate his misconduct while in the Naval service.  Relief denied.

The following if provided for the edification of the Applicant.  The Applicant has exhausted his opportunities for review by the NDRB.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560A, Change 8, effective 
21 Aug 89 until 14 Aug 91) Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023

(a)