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

FOR OFFICIAL USE ONLY

ex-ITSN, USN
Docket No. ND05-01506

Applicant’s Request

The application for discharge review was received on 20050906.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060619.  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:

“My record of AWOL/UA indicates trivial or solitary offenses that defines a tolerant service member, I have been a exemplary citizen since discharge, I received letters of recommendation, My average behavior and efficiency rating were pretty good, Accordingly to my advancement I was generally a good service member, compassion is warranted because it is an injustice for me to continue to endure the adverse consequences of a bad discharge, my ability to serve was impaired because of marital problems that did not get the best possible assistance from a command level, and the punishment I got was too severe yet comparable to others the outcome could have been a lesser degree.”

Documentation

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

Certificate of Achievement for completing six or more self-esteem sessions, Men’s Ministry of Morning Star Baptist Church, dtd April 15, 2005
Certificate of Recognition for Biblical Achievement from Faith Temple Church of GOD in Christ, dtd April 2, 2005
Certificate of Attendance for Outstanding Attendance at Phillip’s Ministry, dtd April 2, 2005
Certificate of Completion for completing Beacon Counseling Anger Management, dtd February 23, 2005
Certificate of Recognition for the Step-Up Incorporated’s Employability Development Skills Training) undated
Certificate of Record Search from District Court of Harris County Texas, dtd June 1, 2005
Certificate of Achievement for completing Special Dads, dtd March 28, 2005
Letter of Recommendation from J_ C_, Facility Supervisor Toyota Center, dtd August 15, 2005
Child’s Birth Certificate

PART II - SUMMARY OF SERVICE

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

	Inactive:  None
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010608		Date of Discharge:  20050405

Length of Service (years, months, days):

	Active:    03  08  00  (Does not exclude lost time.)
	Inactive:  00  01  28

Time Lost During This Period (days):

	Unauthorized absence:  141 days (IHCA)
	Confinement:		  none

Age at Entry:  18 

Years Contracted:  4 (19 month extension)

Education Level:  12				AFQT:  33

Highest Rate:  ITSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.2 (4) 		Behavior:  3.5 (4) 		OTA:  3.29 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal.

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

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

Chronological Listing of Significant Service Events: 

010806:	Commenced active duty for a period of 4 years

020206:	Retention Warning:  Advised of deficiency (Violation UCMJ Article (s) 121, Larceny.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020206:	NJP for violation of UCMJ, Article 121: Larceny, steal one briefcase.
	Award:  Restriction and extra duty for 14 days, reduction to next inferior pay grade (suspended for 6 months).  No indication of appeal in the record.

041115:	Applicant taken into custody by Civilian Authority.
 
041208:	Civil Conviction:  Applicant pled guilty in Hampton Juvenile and Domestic Relations District Court to two counts of assault and battery of his wife, T_ F_ on 29 August 2004 and 15 November 2004.
Sentence:  Confinement for 24 months, 12 months suspended, probation for 3 years, $664.00 court cost, and domestic violence program with CCD.

050205:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to a civilian conviction.

050315:	Applicant advised of rights and having elected to consult with counsel, elected to waive all rights.

050331:	Commanding Officer, USS ENTERPRISE (CVN 65) recommended to Commander, Carrier Strike Group TWELVE that the Applicant be discharged under other than honorable conditions by reason of misconduct due to civilian conviction.  Commanding Officer’s comments:  “ITSN F_ (Applicant) is currently in the Hampton City Jail serving the 1 year sentence he received for assaulting his wife on 29 August 2004.  He waived his administrative board on 15 March 2005.  ITSN F_’s (Applicant) misconduct indicates he does not have the potential for further Naval service.  Accordingly, I recommend that he be discharged from the Naval service for misconduct due to civilian conviction.  I further recommend that his characterization of service be other than Honorable.”

050404:	GCMCA, Commander, Carrier Strike Group TWELVE authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to civilian conviction.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged in absentia on 20050405 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).

The Applicant alleges inequity in that his offenses were “trivial or solitary.” Mandatory processing for separation is required for offenses involving violent misconduct that results in, or had potential to result in, death or serious bodily injury. Separation under these conditions generally results in characterization of service under other than honorable conditions. The Applicant pled guilty to two counts of assault and battery on his wife and was sentenced to 12 months in jail and three years probation. Additionally, the Applicant was convicted at nonjudicial punishment of violation of UCMJ Article 121 – larceny. Both assault and battery and larceny are considered serious offenses. 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.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, is considered.  The Applicant provided three certificates of training, a certificate of recognition, a certificate of attendance, and one letter of recommendation from his employer as documentation of his post-service accomplishments. Additionally, the Applicant provided a criminal records search certifying no criminal charges were found from 1976 until 1 June 2005 on file with the District Clerk of Harris County, Texas. At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in the characterization of discharge.  Therefore, no relief will be granted.  

The Applicant contends that his problems in the Navy can be attributed to his "marital problems" and “he did not get the best possible assistance from a command level.” The Applicant bears the burden of presenting substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that his misconduct was the result of marital problems or that his command failed to provide assistance. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

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), re-issued October 2002, effective 22 Aug 02 until 28 April 2005, Article 1910-144 (previously 3630610), Separation by Reason of Misconduct - Civilian Conviction. 

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 128 – assault consummated by battery and Article 121 - larceny.

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