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Docket No. ND02-00075

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

 ex-AD3, USN
Docket No. ND02-00075

Applicant’s Request

The application for discharge review, received 011009, 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 020619.  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.  I believe discharge was improper due to Par 1 and Par 3 of my letter to the Naval Council of Personnel Board.

2.  I believe the discharge was improper par 3.  no proper or adequit support of myself.

Documentation

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

Copy of DD Form 214
Statement from applicant
Copy of enlisted activity loss (applicant's wife)
Copy of compensation benefits dated July 2001
Copy of request for name change dated December 28, 1998
Character reference dated September 7, 2000
Character reference dated September 9, 2000
Character reference dated September 2, 2000
Seventy-two pages from applicant's service record

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR		851119 - 851211	To report AcDuTra
	Active:   USNR 		851212 - 860511	RelAcDuTra
	Inactive: USNR		860512 - 8805??	Started Prison term
	Inactive: USNR		960131 - 961222	To Enlist USN

Period of Service Under Review:

Date of Enlistment:  961223		Date of Discharge:  000818

Length of Service (years, months, days):

	Active:    03  07  26
	Inactive:  None

Age at Entry:  28			Years Contracted:  4

Education Level:  12			AFQT:  65

Highest Rate:  AD3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.14 (7)	Behavior:  2.57 (7)		OTA:  2.98

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC (2), GCM, AFEM, SSDR (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:

000310:	Retention Warning:  Advised of deficiency (Violation of OPNAVINST 5370.2B: Navy Fraternization Policy), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

000527:	Applicant signed Rules of Sexual Harassment and Interpersonal Relationships.

000720:	Charge sheet: Violation of the UCMJ, Article 90: Willfully disobeying a superior commissioned officer between 10Mar and 3Jul00, to wit: to cease all unduly familiar relationships that do not respect differences in rank and grade and that are contrary to good order and discipline, and violation of the UCMJ, Article 92: Failure to obey order or regulation between 10Mar and 3Jul00, to wit: OPNAVINST 5370.2B, Navy Fraternization Policy, dated 27 May 1999, by wrongfully continuing an unduly familiar relationship that did not respect differences in rank and grade and that was contrary to good order and discipline with Airman Apprentice.

000722:	Local police had to visit applicant's residence 2330, 22Jul00, after applicant made threats against his chain of command.

000814:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

000814:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

000818:	Commanding officer directed discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.  Commanding officer’s comments (verbatim): Following repeated counseling to cease dating an Airman Apprentice in the squadron, AD3 (applicant) came before me while I was the squadron's Executive Officer. I counseled him and the Airman Apprentice that their relationship was unduly familiar and did not respect differences in rank.  I ordered them to stop this relationship because it was contrary to the good order and discipline of the unit.  Both individuals signed page 13 entries, acknowledging their substandard performance and the order to correct it.  AD3 (applicant) clearly and willfully violated this order and continued to date the Airman.  An ongoing relationship continued to be witnessed by squadron personnel with the command unfortunately being required to transfer the Airman due to her subsequent pregnancy.  The pair later married.  AD3 (applicant) was charged with violating a lawful order and also with violating rules on fraternization.  He subsequently made remarks to the squadron duty officer threatening harm to members of his Chain of Command.  These threats were taken seriously, and the local police were required to visit his residence.  The charge of threats against others has been added.
	AD3 (applicant) has refused non-judicial punishment on current charges, knowing that the command cannot properly process him for a Courts Martial while deploying on a six month cruise.  The command also cannot afford to leave behind or send back the 6-10 witnesses required for another command to process this case.  Because of his criminal history and his threats against members of this squadron, I cannot trust him to work on aircraft or even be aboard ship.
	AD3 (applicant) has a history of difficulty dealing with authority, challenging his chain of command on every decision.  AD3 (applicant) does not remotely embody the Navy's Core Values of Honor, Courage, and Commitment.  It is unfortunate that this command is days away from a six month deployment and I cannot process AD3 (applicant) for Court Martial.  AD3 (applicant) was discharged on 18 August 2000 with a General Discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 000818 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 applicant failed to convince the Board that his command unfairly charged the applicant with violating Articles 90 and 92 of the UCMJ.  Sufficient documentation was not present to overturn the presumption of regularity. A characterization of service of under honorable conditions (general) 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 the commission of a serious offense that could have led to a trial by court-martial. 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.  An upgrade to honorable would be inappropriate.  Relief denied.

Issue 2. The applicant failed to convince the Board that his command unfairly denied the applicant assistance in his personal affairs. While he may feel that his concern for his girlfriend and future wife was a factor that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  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 28, effective 
30 Mar 00 until 29 Aug 00, 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:  A6750/A9453/A9217/A9223/A9309/A9221