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

FOR OFFICIAL USE ONLY

ex-DK3, USN
Docket No. ND06-00762

Applicant’s Request

The application for discharge review was received on 20060516.  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 20070308.  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.

The NDRB did note administrative error(s) on the original DD Form 214.  Block 18, Remarks, should contain the following statement:  “CONTINUOUS HONORABLE ACTIVE DUTY FROM 910624 UNTIL 950615,” and Block 24, Character of Service, should read:  “UNDER OTHER THAN HONORABLE CONDITIONS,” and Block 25, Separation Authority, should read:  “MILPERSMAN, Article 3630610.”  The Commander, Navy Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

EQUITY – Aside from the isolated incident which precipitated discharge, the Applicant’s service was otherwise honorable as evidenced by a 4.0 evaluation, good conduct award and absence of nonjudicial punishments.

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214 (Service 2)
Three pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19910530 - 19910623	COG
	Active:   USN	19910624 - 19950615	HON

Period of Service Under Review:

Date of Enlistment:  19950616		Date of Discharge:  19970611

Length of Service (years, months, days):

	Active:    01  11  26  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  149 days (IHCA)
	Confinement:		  None

Age at Entry:  24

Years Contracted:  2

Education Level:  12				AFQT:  56

Highest Rate:  DK3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.0 (1)			Behavior:  4.0 (1)		OTA:  4.00

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Sea Service Deployment Ribbon, First Good Conduct Award, Meritorious Unit Commendation (2nd).

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 3630610.

Chronological Listing of Significant Service Events: 

950616:	Reenlisted this date for a term of 2 years.

970113:	Applicant apprehended by Norfolk Police Department and charged with indecent liberties and aggravated sexual battery.

970117:	Civil Conviction:  Circuit Court of the City of Norfolk, VA.
Sentence:  Imprisonment for 25 years.

970606:	Commander, Naval Base, Norfolk, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense - civil conviction.

970611:	Applicant discharged in absentia.

Service Record contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged, in absentia, on 19970611 by reason misconduct due to civil conviction (A) 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 (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

The Applicant implies that his discharge is inequitable because the incident which formed the basis for his discharge was an isolated incident and that his service was otherwise honorable.  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 a civil conviction resulting in a sentence of 25-years imprisonment.  The Applicant’s apprehension by civil authorities resulted in the Applicant’s unauthorized absence for 149 days, until he was discharged in absentia.  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.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 03 Oct 96 until 11 Dec 97, Article 3630610, SEPARATION OF ENLISTED PERSONNEL 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, Para 211, Regularity of Government Affairs.  

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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 

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