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Docket No. ND03-01039

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

ex-AZAN, USN
Docket No. ND03-01039

Applicant’s Request

The application for discharge review was received on 20030528.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record 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 20040415.  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)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “My discharge was inequitable because it was based on an incident after 47 months of excellent service.  I went to Captain’s Mast for an UCMJ adultery charge, but at the time I was in the  process of obtaining a divorce from my ex-wife. My ex-wife left me shortly before my first western pacific deployment and moved to Dallas, Texas.  While on the 1995-1996 USS Nimitz deployment I had limited contact with my wife at the time, but we did discuss legal divorce, but we both agreed it would be better to wait until I returned off of deployment to start any type of proceedings.  I then returned to naval air station Whidbey Island, Washington, and helped my squadron VA- 165 decommission and within a few months was reassigned to another squadron, VAQ-131.  The squadron was just beginning “work ups” for a western pacific deployment.  The busy work schedule and my ex-wife living in Texas created difficulties with the divorce.  I had numerous work detachments and a busy night shift schedule to balance, while trying to contact my ex-wife about the details of the divorce.  I left for a western pacific deployment aboard the USS Constellation later that year.  Again contact was limited with the ex-wife, while on deployment.  We both agreed to wait to complete the divorce after I returned from the deployment.  I returned around November of 1997.  I began dating a new women, which is my wife now, and worked on completing my divorce from my ex-wife.  By this time the first draft was completed and we were arguing about child support matters.  I had worked and received selection to the Naval Aircrew School and Aviation Sensor Warfare Operator ‘AW’, “A” school.  I signed an extension for orders to the “A” school, which would begin in July of 1998.  My date to end my 4 year contracted service was November 1997.  I went to XOI and Captain’s Mast early November of 1997 for the charges of adultery.  I was completely honest at my Mast, and lost my “A” school, but had the other charges suspended for 6 months.  I was assigned extra military instruction and restriction for 45 days.  While on this restriction period I was not allowed to drive anywhere and had to walk to all of my destinations.  The galley at Whidbey Island was shut down for renovations and the galley was moved to the Nor’Western club, which was a 15 minute walk front the squadron work spaces.  I was in a disagreement with my work center supervisor AD1 M_ about the time I needed to get chow and still be back at the squadron spaces.  He wanted to give me a total of 30 minutes and I was asking for 1 hour.  The conversation heated up quickly and I called him an Idiot.  I was written up and again taken to XOI.  I lost my stripes and was demoted to an E-3.  I became totally disheartened with the Navy and VAQ-131 at this time, and asked to be discharged early from my extension.  I had 1 month to complete my extension.  My command agreed and let me out with a General Discharge.  I did not understand at the time and was eager to leave, how a General Discharge would effect me and any potential employers.  I also feel that based on my 47 months of excellent service, my promotion to E-5, my good conduct medal, my 2 western pacific deployments, and my Enlisted Aviation Warfare Specialist award, my discharge should be upgraded to a Honorable Discharge.”

Documentation

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

Statement from Applicant, dated March 10, 2004
Applicant’s DD Form 214.

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	920513 - 930412	ELS
		   USNR (DEP)	931110 – 931117	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  931118		Date of Discharge:  980403

Length of Service (years, months, days):

	Active:    04  04  16
	Inactive:  None

Age at Entry:  22			Years Contracted:  4 (24 months extension)

Education Level:  14			AFQT:  88

Highest Rate:  AZ3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*		Behavior:  NMF*		OTA:  NMF*

Military Decorations:  None

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

Days of Unauthorized Absence:  None

*No marks found in service record.

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:

980112:	NJP for violation of UCMJ, Article 134 (2 specs): (1) Wrongfully have sexual intercourse with a married woman not his wife, (2) Wrongfully cohabit with a married woman not his wife.
	Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 45 days, reduction to AZAN.  Forfeiture and reduction suspended for 6 months.  No indication of appeal in the record.

980318:	NJP for violation of UCMJ, Article 91: Disrespect toward a petty officer on 980303.
	Award: Restriction and extra duty for 30 days.  No indication of appeal in the record.

980318:	Retention Warning: Advised of deficiency (Disrespect toward a Petty Officer, as evidenced by CO’s NJP of 980318, violation of Article 134, adultery and wrongful cohabitation, as evidenced by CO’s N:JP of 980112.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

980326:	Vacate suspended forfeiture awarded at Commanding Officer’s NJP dated 980112.

980331:	Retention Warning: Advised of deficiency (Violated Article 134: breaking restriction, on repeated occasions.  Having signed VAQINSTR 1620.2 (Squadron Restriction Regulations), on both 980412 and 980318, Applicant indicated understanding of the regulations.  Subsequent to this indications, broke restriction by having a female visitor in the barracks and in his workplace (vice in the Ready Room between the hours of 1900 and 2000 as directed by regulations) on multiple occasions.  He left NAS Whidbey Island, which was restricted to, without authorization on 980125.  He was caught using a television and VCR in a room he was not authorized to be in on 980318.  Furthermore he missed his 1230 restricted men’s muster on 980330.)

980331:	Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense as evidenced by Commanding Officer, nonjudicial punishment of 980112 for violation of UCMJ Article 134, adultery, and Commanding Officer nonjudicial punishment of 980318 for violation of UCMJ Article 91, disrespect toward a superior petty officer; and by reason of misconduct – pattern of misconduct, as evidenced by the aforementioned nonjudicial punishments, and violation of your NAVPERS 1070/613 administrative remarks of 980331.

980331:	Applicant advised of 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.

980403:	Commanding Officer directed discharge general (under 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 19980403 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:  In the Applicant’s case, the Board dicovered no impropriety or inequity; thereby, considered the Applicant’s discharge proper and equitable. A characterization of service of general under honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) on two separate occasions, to include the appropriate retention and discharge warnings.  The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service. An upgrade to honorable would be inappropriate.  Relief denied.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.  

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 other evidence related to his discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

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 "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.
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