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

  ex-YNSN, USN
Docket No. ND05-00396

Applicant’s Request

The application for discharge review was received on 20050103.  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 review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050412.  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).  Applicant discharged in absentia.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I am respectfully requesting an upgrade of discharge for the following reasons; up until my discharge I had a clean military record.  My discharge related to a domestic crime and not anything related to my service in the Navy.”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	970426 - 970723	COG
	Active:   USN 			970724 - 010228	HON

Period of Service Under Review:

Date of Enlistment:  010301		Date of Discharge:  020315

Length of Service (years, months, days):

	Active:    01  00  15
	Inactive:  None

Age at Entry:  21			Years Contracted:  2

Education Level:  12			AFQT:  75

Highest Rate:  YN3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*			Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  LoC (3), NDSM

Days of Unauthorized Absence:  None

*No marks attained from service record

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 1910-144 (formerly 3630610).  Discharged in absentia.

Chronological Listing of Significant Service Events:

010301:	Re-enlisted this date for 2 years.

010419:	NJP for violation of UCMJ, Article 86 (2 specs):  (1) Absent from appointed place of duty on 2150, 010408, to wit: duty section, (2) Go from appointed place of duty on 2150, 010408, to wit: quarterdeck watch, violation of UCMJ, Article 92 (2 specs): (1) Fail to obey lawful written order on 2150, 010408, to wit: ACUONEINST 1601.1F dated 000626, (2) Derelict in performance of duty on 2150, 010408 in that he negligently failed to stand a proper watch, to wit: quarterdeck watch.
	Award: Restriction and extra duty for 30 days, reduction to E-3.  No indication of appeal in the record.

010420:	Retention Warning:  Advised of deficiency (Unauthorized absence and failure to obey other lawful order), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

011126:	Civil Conviction:  Superior Court of California, San Diego for violation of 4 separate counts (PC 293a(a), PC 273a (a), PC 245 (a) (1), and PC 273.5 (a).
Sentence:  Prison for 8 years.

011224:	Applicant notified of intended recommendation for administrative separation by reason of misconduct due to a civil conviction.  The least favorable characterization of service possible is Under Other Than Honorable Conditions.

011224:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ, Article 27(b), elected to waive all rights.

020226:	CNPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to civil conviction.

020403:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to civil conviction.

Complete discharge package unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged, in absentia, on 20020315 under other than honorable conditions for misconduct due to civil conviction (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).    

Issue 1.  When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  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 award of two nonjudicial punishment (NJP) proceedings for violations of UCMJ Articles 86 (Unauthorized absences), and Article 92 (Disobey a lawful order).  In addition the Applicant was awarded a civil conviction by the superior court of San Diego, California. 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 upgrade to the characterization of service.  Relief denied.

The Applicant claims that his discharge was related to a domestic crime and not anything related to his service in the Navy.  Applicable regulations permit a member’s separation from the Naval service and a characterization of under other than honorable for civilian misconduct.

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.  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 5420.174D 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