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

FOR OFFICIAL USE ONLY

 ex-BTFN, USN 
Docket No. ND05-01399

Applicant’s Request

The application for discharge review was received on 20050823.  The Applicant requests the Discharge 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 designated Veterans of Foreign Wars as the representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the counsel/representative he listed on his application for discharge review cannot accommodate applicants at this time in providing representation. The Applicant was advised that he could choose another counsel from a list provided. The Applicant did not respond, therefore the NDRB conducted the documentary record discharge review with no designated representative. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060421.  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 by reason of misconduct due to civil conviction.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“This was one isolated incident after over 2 years of good service including Desert Shield and Desert Storm.”

Documentation

Only the service and medical records was reviewed.  The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19890720 – 19890827		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19890828		Date of Discharge:  19920805

Length of Service (years, months, days):

	Active:    02  11  20  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  154 days
	Confinement:		  none

Age at Entry:  23

Years Contracted:  4 (24 month extension)

Education Level:  11				AFQT:  68

Highest Rate:  BT3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.9 (2) 		Behavior:  2.8 (2) 		OTA:  3.50 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy Unit Commendation, National Defense Service Medal, Southwest Asia Service Medal (3), Sea Service Deployment Ribbon, Kuwait Liberation Medal.

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: 

910628:	Applicant to unauthorized absence at 0645 on 910628.

910628:	Surrendered on board USS SARATOGA (CV-60), at 0800 on 910628.

910701:	Applicant to unauthorized absence at 0650 on 910701.

910701:	Surrendered on board USS SARATOGA (CV-60), at 1900 on 910701.

910708:	Applicant to unauthorized absence at 0645 on 910708.

910708:	Surrendered on board USS SARATOGA (CV-60), at 1200 on 910708.

911021:	Applicant to unauthorized absence from USS SARATOGA (CV-60) since 0730 on 911021.

920109:	Civil Conviction:  Duval County, FL Circuit Court for strong arm robbery and battery.
Sentence:  6 months in Duval County Jail; 18 months and 12 months probation (concurrent); and court costs.

920323:	Surrendered to Military Control at 1200, 920323 at USS SARATOGA (CV-60) (154 days/surrendered).  Retained onboard for disciplinary action.

920407:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civilian conviction, and misconduct due to commission of a serious offense.

920420:	Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation, the right to submit statements on own behalf either verbally or in writing before an Administrative Board, or in writing if an Administrative Board is not convened and the right to a minimum of two working days to respond to the Notice of the Administrative Board Procedure Proposed Action.

920604:	Commanding Officer, USS SARATOGA recommended discharge under other than honorable conditions by reason of misconduct due to civilian conviction and misconduct due to commission of a serious offense.  Commanding Officer’s comments:  “BT3 A_ (Applicant) has been convicted of a serious civilian offense, assault and battery of a elderly person in Jacksonville Beach, Florida.  BT3 A_ (Applicant) was provided Level III Treatment, and he alone was responsible for his program failure.  Moreover, he was also responsible to utilize his chain of command for aftercare assistance.  He does not conform to military standards and is aware of the navy’s policies regarding misconduct.  Accordingly, it is recommended that he be separated from the naval service under other than conditions on the basis of misconduct due to civilian conviction and misconduct due to commission of a serious offense.”

920709:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct civil conviction.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920805 by reason misconduct due to civil conviction (A and B) with a service characterization of under other than honorable conditions.  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).  

When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  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 service was marred by 3 periods of unauthorized absence totaling 157 days and a felony civilian conviction.  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 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 additional evidence related to this 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, effective 15 Aug 91 until 04 Mar 93), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT. 

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 86 – absence without leave more than 30 days, Article 122 – robbery,  and Article 128 - assault.

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