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

FOR OFFICIAL USE ONLY

 ex-CTOSN, USN
Docket No. ND06-00934

Applicant’s Request

The application for discharge review was received on 20060707.  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 20070426.  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 General (Under Honorable Conditions) by reason of misconduct due to civil conviction.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

Equity – Isolated incident

Documentation

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

Applicant’s DD Form 214 (Member 4)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20010327 - 20010615	ELS
		 USNR (DEP)	20020313 - 20020520	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20020521		Date of Discharge:  20050317

Length of Service (years, months, days):

	Active:    02  09  17  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  112 days
	Confinement:		  None

Age at Entry:  19

Years Contracted:  4

Education Level:  12				AFQT:  54

Highest Rate:  CTOSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.5 (2)			Behavior:  2.5 (2)		OTA:  2.86

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):

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

Chronological Listing of Significant Service Events: 

041006:	Applicant arrested by Los Angeles Police Department and charged with trespassing, criminal threats, and two counts of misdemeanor domestic battery.  [Extracted from CO’s letter 050215.]

041007:	Applicant entered a plea of no contest on one count of domestic battery, and the remaining charges were dropped.  Applicant was sentenced to 36 months of summary probation, 30 days of community service, and attendance at domestic violence rehabilitation classes.  Additionally, Applicant was ordered not to approach within 100 yards of the victim or her residence. [Extracted from CO’s letter 050215.]

041011:	Applicant arrested by Los Angeles Police Department for violation of a restraining order and placed in custody.  He was later charged with felony stalking, criminal threats, and assault with a deadly weapon.  Applicant is in the hands of civilian authorities (IHCA).  [Extracted from CO’s letter 050215.]

041108:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct - commission of a serious offense and misconduct - civilian conviction.

0412XX:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.  [Note: partial date, verified by CO’s letter 050215.]

041216:	Applicant pled guilty to felony assault with a deadly weapon; the additional charges remain pending.  Applicant has been held in civilian custody since his arrest and is presently incarcerated at the North County Correctional Facility in Castaic, CA.  [Extracted from CO’s letter 050215.]

050201:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct - commission of a serious offense and a civilian conviction, that such misconduct warranted separation, and recommended discharge with a general (under honorable conditions).

050215:	Commanding Officer, Naval Security Group Activity, San Diego, recommended discharge under other than honorable conditions by reason of misconduct - civilian conviction and misconduct commission of a serious offense.

050301:	CNPC directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct due to civilian conviction.

050302:	Applicant from unauthorized absence at 0730 (112 days/surrendered).

050317:	Applicant discharged in absentia this date.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged, in absentia, on 20050317 by reason misconduct due to civil conviction (A and B) with a service characterization of general (under 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 Board presumed regularity in the conduct of governmental affairs (E).

Equity – Isolated incident:  The Applicant contends that his discharge should be upgraded because his discharge resulted from one mistake that involved civilian authorities.

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.  A general (under 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.  During the period of service under review, the Applicant was arrested twice within 3 days by civilian authorities and charged with trespassing, criminal threats, two counts of misdemeanor domestic battery, violation of a restraining order, felony stalking, and assault with a deadly weapon.  The Applicant pled guilty to one count of domestic battery and to felony assault with a deadly weapon.  The Applicant’s misconduct violates UCMJ Article 128 (assault consummated by battery and assault with a dangerous weapon or means likely to produce grievous bodily harm or death).  Violations of UCMJ Article 128 are considered serious offenses for which a punitive discharge is authorized if adjudged by a special or general court martial.  Members may be separated based on civilian convictions when the offense(s) would warrant a punitive discharge.   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 Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

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 assault with a dangerous weapon or means likely to produce grievous bodily harm or death).

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.

E.  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