Author: CAP
Last saved by: Department of the Navy
Company: NCPB

Docket No. ND01-00871

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

ex-SK3, USN
Docket No. ND01-00871

Applicant’s Request

The application for discharge review, received 010619, 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020110.  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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  The administrative separation board I had gave me a General discharge with a 12 month discharge suspension, but the CO had me immediately discharged and the suspension waived.  I felt it was unfair the way the CO went about to get me discharged from the military.  The misdemeanor civilian offense is dismissed.

2.  Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge.  My conduct and efficiency rating and marks were good and commendable.

3.  Under current standards, I would not receive the type of discharge I did.  In the military today, there are classes and counseling available and I went through and completed counseling provided successfully and had my charge dismissed.  This was my first and only offense.

Documentation

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

Copy of DD Form 214
Superior Court of California Order dtd 10 Apr 01, setting aside conviction and dismissing the charges
United Education Institute Certificate for Completion of Networking Technology dtd 13 Jun 2000

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	911018 - 920803	COG

Period of Service Under Review:

Date of Enlistment:  920804		Date of Discharge:  990409

Length of Service (years, months, days):

	Active:    06  08  06
	Inactive:  None

Age at Entry:  19			Years Contracted: 4 (4, 25, 12 month extensions)

Education Level:  12			AFQT:  44

Highest Rate:  SK3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.8(3)		Behavior:  4.0 (3)		OTA:  3.93 (4.0 evals)
		 3.83 (6)		      3.83(6)		        Unavailable (5.0 evals)

Military Decorations:  None

Unit/Campaign/Service Awards:  Navy "E" Ribbon (2), MUC, NDSM, SSDR(2), AFEM, SWASM, GCM (2)

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

920804:	Enlisted for a term of four years.

960804:	Extended enlistment for 4 months.

961204:	Extended enlistment for 25 months.

981214:	Unauthorized absence from 0730, 14Dec98.  Detained by civilian authorities.

981224:	Released by civilian authorities and return to military control at 1400, 24Dec98.  On unauthorized absence for a period of 10 days and six hours. 

980203:	San Diego Municipal Court:  Convicted of Spousal abuse and Brandishing a Weapon.
	Sentence:  18 months probation and/or pay fine of $7,000, satisfactorily complete Domestic Violence Program.

980508:	Termination of Work Projects Program (domestic violence program) since applicant failed to satisfactorily complete the conditions of the Public Service Program.  Actually worked 11 of 15.

990104:	Extended enlistment for 12 months.

990113:	Applicant notified of intended recommendation for discharge in which the characterization of service may be under other than honorable conditions by reason of misconduct due to the commission of a serious civilian offense and civilian convictions as evidenced by the San Diego Municipal Court Case ----------- Juris VR---- and by SK3 (Applicant)'s guilty plea to two counts (First Count PC273.5(a): Spousal Abuse and Sixth Count PC417(a)[1]:  Brandishing a Weapon in a threatening manner) in San Diego Municipal Court date -2-03-98.  He was sentenced to 18 months of probation (and/or pay a fine of $7,000) and violated the conditions of his probation.  In addition, he was required to, but failed to satisfactorily complete the Domestic Violence Program.

990120:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

990301:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed a serious offense, that the misconduct warranted separation, and recommended discharge with a General (Under Honorable Conditions). By a vote of 2 to 1, recommended discharge be suspended.

990301:	Letter of Dissention:  Board member felt the member was guilty of a serious offense and his chances for rehabilitation were not good.  He was arrested twice already for the same offense.

990412:	Commanding Officer Fleet Hospital Operations and Training Command, Camp Pendleton, advised BUPERS, applicant's discharge was directed with a General (Under Honorable Conditions) by reason of misconduct due to the commission of a serious military or civilian offense.  CO's letter of 12Apr99 to BUPERS states:  "I concur with the findings of the board that SK3 (Applicant) should be discharge from the Naval Service.  I do not concur with the recommendation that the characterization of service should be General (Under Honorable Conditions) and that his discharge be suspended for 12 months.  Since the board decided to discharge SK3 (Applicant) with a General (Under Honorable Conditions), I strongly recommended that SK3 (Applicant) be discharged immediately from the Naval Service with a General (Under Honorable Conditions) and that the suspension be waived."

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 990409 with a General (Under Honorable Conditions) for misconduct due to commission of a serious offense (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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).

Issue 1.   The Board found no inequity or impropriety in the fact that the separation authority directed the applicant’s discharge rather than following the Administrative Discharge Board’s recommendation that the discharge be suspended.  Relief is denied.

Issue 2.  A discharge under honorable conditions is warranted when 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 the commission of a serious offense.  The commission of a serious offense does not require adjudication by non-judicial or judicial proceedings.  The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for an honorable characterization of service.  The Board found that the applicant’s high conduct and efficiency ratings likely mitigated against his receiving a discharge under other than honorable conditions, which would be more commonly awarded for his offense.  An upgrade to honorable would be inappropriate.  Relief denied.

Issue 3.  The Board determined that under today’s standards, the applicant would receive a discharge under other than honorable conditions for the offense he committed, which resulted in his discharge.  The applicant implies that a permissive doctrine exists whereby one in the military is allowed a “single misdeed”.  The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record.  No such leniency exists in the military.  The applicant is responsible for his actions and must accept the consequences of his misdeeds.  The Board will not grant relief on the basis of this issue.

He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 
12 Dec 97 until 29 March 2000, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE.

B.  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.  

C.  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.

D.  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 "afls10.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/A9405/A9201/A9401/A9221