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

 ex-AW3, USN 
Docket No. ND05-00075

Applicant’s Request

The application for discharge review was received on 20041015.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant designated the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050118.  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 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“Dear DR.B or BCMR: The following issues are the reasons I believe my discharge should be upgraded to Honorable. If you disagree, please explain in detail why you disagree. The presumption of regularity that might normally permit you to assume that the service acted correctly in characterizing my service as less than Honorable does not apply to my case because of the evidence I am submitting. I Have 6 issues I am submitting to you.

Issue 1

My average conduct and efficiency ratings, behavior, and proficiency marks were good. I always received above average evaluations and was considered a good sailor. Promotable and must promote boxes were always checked. My superiors always regarded me as a leader, responsible, and always getting the job done in a timely and proficient manner. My superiors always counted on me because they knew the job would always get done right the first time.

Issue 2

I received Awards and Decorations. I received the Good Conduct Medal after 3 years of continuous good service. My other Awards and Decorations were in lieu of my detachments progress.

Issue 3

My record of promotions showed I was generally a good service member. I was discharged as a Petty Officer 3rd class with a PNA for E-5 as an Aviation Warfare Systems Operator (AW), as well as held a TOP SECRET security clearance. From B-ito E-4 I always got promoted on time and finished my required courses and requirements for all pay grades.

Issue 4

I had a prior Honorable Discharge. I was Honorably Discharged 22 Nov 96. 1 had served Honorably for over 2 yrs on my first enlistment, and signed an extention to finish “A” school and change ratings from SN to AN and further my career as to better myself I then signed a 5yr re-enlistment to show my commitment to serve in the U.S. Navy.

Issue 5

My record of convictions by civil authorities while I was in service indicates only minor or isolated offenses. I’d like to explain what happened. I was involved in a bar fight. I was in the middle of a divorce and was seeking solace with another woman who I did not know was involved. We were fooling around in my truck getting ready to have sex. Her boyfriend walked up on us with 2 other people and pulled me out of the truck. We fought, she ended up in the middle and got hurt. I called the police and they charged me with attempted sexual battery and aggravated battery. I served 1 year in the Duval county jail, and received 5 years of probation with special stipulations: attend a psychosexual treatment program, which has been completed successfully, and 100 hours of community service, which has also been completed successfully. My adjudication of a felony conviction was withheld. The court dropped the charge of attempted sexual battery I just got caught up in a bad situation and lost my Naval career and disappointed my family. My mother retired from the Air Force after 23 yrs of service. This was my first offense. I loved being in the Navy and wish I could still defend this country in the Armed Forces again.

Issue 6

I have been a good citizen since my discharge. My probation was terminated 1 year early for good behavior and I satisfied all the conditions of my probation.”

The American Legion did not provide any issues.

Documentation

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

Applicant’s DD Form 214 and 215
Request for police record check
Letter of reference from T_ L. H_ (2)
Letter of reference from Officer T.G. S_ (2)
USN Honorable Discharge Certificate

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	940426 - 940524	COG
	Active:   USN 			940525 - 961121	HON

Period of Service Under Review:

Date of Enlistment:  961122		Date of Discharge:  990202

Length of Service (years, months, days):

	Active:    02  02  12  (Does not exclude civilian confinement)
	Inactive:  None

Age at Entry:  24			Years Contracted:  5

Education Level:  12			AFQT:  53

Highest Rate:  AW3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  None		Behavior:  3.67 (3)		OTA:  3.22

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, NER, SSDR, AFSM, GCA

Days of Unauthorized Absence:  239

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

980614:	Applicant arrested on 980605 and held in Duval County, FL jail charged with aggravated battery and aggravated attempted sexual assault.  Squadron deployed on 980610; Applicant transferred to TPU.
	
981201:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and due to a civilian conviction as evidenced by a civilian conviction for aggravated battery on 981113.  Sentenced to 5 years probation, 1 year jail (with 157 days credit), 100 hours of community service, attend substance and psychosexual treatment, and $303.00 fine.

981209:	CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

Partial discharge package

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged in absentia on 19990202 under other than honorable conditions for misconduct due to commission of a serious offense (A).  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 (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

Issues 1-5.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor.  The Applicant’s service was marred by violations of the UCMJ that are considered serious offenses consisting of aggravated battery and an extended unauthorized absence due to incarceration.  Despite the positive aspects of the Applicant’s service, his conduct 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 or under honorable (general) characterization of service.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

Issue 6.  The Applicant’s discharge characterization accurately reflects his service to his country for the enlistment under review.  Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question.  No such inequity or impropriety is evident during the Applicant’s enlistment.  Additionally, 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.  However, 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 any 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.  Evidence of continuing educational pursuits, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge.  Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  Representation at a personal appearance hearing is recommended but not required.  

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 
12 Dec 97 until 29 March 2000, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE.

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

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

D.  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.

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