Author: CAP
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Docket No. ND00-00722

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

ex-ENFN, USN
Docket No. ND00-00722

Applicant’s Request

The application for discharge review, received 000516, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010104.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  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 3630600.

The NDRB did note an administrative error on the original DD Form 214.  Block 18, Remarks, should contain the following entry:  "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 04OCT88 UNTIL 19FEB92".  The original DD Form 214 should be corrected or reissued as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  Prior to my divorce, I, (applicant), had a good, clean, military record.  After having gotten married, I discovered my wife was having an affair with another member of the Navy.  At the time, she started causing trouble for me because I became aware of the affair and would not leave him alone. Also, she had stated that if I got him into trouble that she would make sure that I was discharged from the service.  She was calling my command and making up lies to get me into trouble.  Up until this point, my career in the Navy was upstanding and good.  I served the Navy for 7 years, 11 months and 28 days.  By upgrading my discharge I can receive credit for my time in service.  Also, by upgrading my discharge I can receive help in seeking employment.  I have missed out on a job because of the type of discharge and feel it was not fair because of a small incident with my ex-wife.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USN			881004 - 920219	HON
	Inactive: USNR (DEP)	880713 - 881003	COG

Period of Service Under Review:

Date of Enlistment:  920220		Date of Discharge:  961010

Length of Service (years, months, days):

	Active:    04  07  12
	Inactive:  None

Age at Entry:  25			Years Contracted:  6

Education Level:  12			AFQT:  26

Highest Rate:  EN3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.45 (4)	Behavior:  3.70 (4)		OTA:  3.65

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, GCM (2), KLM (K), MUC, AFEM (2), SSDR (3)

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

930722:	NJP for violation of UCMJ, Article 134: Failed to pay debt.
	Award: Reduction to ENFN.  Reduction suspended until March 1994.  [Extracted from CO's letter dated 960913.]

960311:	NJP for violation of UCMJ, Article 92: Failed to obey the written barring order dated 1 February 1996 issued by the Commanding Officer, Naval Station, to wit: entering the Anchors and Spurs Club on 22Feb96.
	Award: Restriction for 30 days, reduction to ENFN.  Reduction suspended for 6 months.  No indication of appeal in the record.

960502:	Retention Warning from SIMA, San Diego:  Advised of deficiency (abusive behaviors), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

960614:	Applicant violated retention warning when he communicated to his estranged wife his threat to cut her throat and kill her twice.

960703:	Vacate reduction to ENFN awarded at CO's NJP dated 11Mar96.

960703:	NJP for violation of UCMJ, Article 134 (3 specs): Did wrongfully communicate a civilian on 14Jun96, a threat by stating "You are my wife and I will fucking kill you if you don't quit your fucking shit or words to that effect, (2) Disorderly in conduct on 14Jun96, which was of a nature to bring discredit upon the Armed Forces, (3) Wrongfully communicate to his wife, a civilian, a threat by stating, "I'll cut your fucking throat and I'll kill you" or words to that effect.
	Award:  Restriction for 60 days.  No indication of appeal in the record.

960827:	Psychiatric evaluation: DX Imp: Axis I: Physical abuse of adult, Alcohol abuse by history R/O alcohol dependency.  Axis II: R/O personality disorder, NOS with narcissistic features.

960827:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to a pattern of misconduct.

960827:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

960913:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense, pattern of misconduct and Family Advocacy Program failure.

960918:	COMNAVSURFPAC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 961001 under other than honorable conditions for misconduct due to commission of a serious offense (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

In the applicant’s issue 1, the Board found that the applicant had 3 NJPs, for failing to pay a debt, failing to obey a written order and 3 specifications of communicating a threat.  The Board found that the applicant’s service is accurately characterized as having been served under other than honorable conditions.  The applicant is responsible for his actions and must accept the consequences of these actions.  No relief will be granted based on this issue. 

There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service.  However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D).  Those factors include, but are not limited to, the following:  evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided any documentation of good character and conduct.  Therefore no relief will be granted.  The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 134, communicating a threat if adjudged at a Special or General Court-Martial.

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 "afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6730/A9307/A9223/A9217