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Docket No. ND04-00190

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

ex-EO2, USN
Docket No. ND04-00190

Applicant’s Request

The application for discharge review was received on 20031117.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to “REQ RE-1.”  The Applicant requests a personal appearance hearing review before a traveling panel.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing, advised that the Naval Discharge Review Board (NDRB) does not travel, and that all hearings are held in the Washington National Capital Region.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040817.  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 and narrative reason of the discharge shall not change.  The discharge shall remain: UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Honorable board members I served honorable and justly and respectfully request the boards seriouse concideration on this matter.  I feel I was wronged do to polical matters on the situation.”

Documentation

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

Letter from Executive Secretary W. D_ P_, BCNR
Copy of DD Form 149
Privacy Act Release from Congress of the United States House of Representatives
Letter from Applicant dated September 11, 2003
Letter from Applicant 
Employment Reference Letter dated September 5, 2003
Character Reference Letter dated August 29, 2003
Employment Reference Letter dated August 27, 2003
Copy of Character Witness Interview Transcript (3 pages)
Copy of Enlisted Performance Evaluation Report 

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	840608 - 850602	COG
	Active:   USN			850603 - 900215	HON

Period of Service Under Review:

Date of Enlistment:  900216		Date of Discharge:  920515

Length of Service (years, months, days):

	Active:    02  03  00
	Inactive:  None

Age at Entry:  25			Years Contracted:  2 (3 months extension)

Education Level:  12			AFQT:  40

Highest Rate:  E02

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.56 (5)	Behavior:  3.56 (5)		OTA:  3.76

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, PMR, RMR, GCM, LOA (3), LOC

Days of Unauthorized Absence:  None

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

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

900216:	Reenlisted at CBU 413 Pearl Harbor HI for 2 years.

910926:	Applicant arrested by San Diego Police Department for a second incident of spousal abuse (Assault with a deadly weapon or instrument).  Applicant failed to fully discuss the incident with his treatment group and his Family Advocacy case manager [Extracted from CO’s Eyes Only letter dated November 27, 1991].  Court date of  911018.  Released to Shore Patrol.

920218:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

920226:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

920410:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense, recommended the separation be suspended for 1 year, and recommended discharge under honorable conditions (general) if separated.

920420:	Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments:  I concur with the findings of the Board and recommend the findings be approved.  Testimony of respondent’s wife indicates extenuating circumstances that led to these incidents and reveals some impropriety on her part.  I understand that this suspension will begin to run when Per-83 notifies us of their decision in this matter.  Any further misconduct during this period of this suspension will result in a vacation of the suspension and discharge from the U.S. Navy.  I believe that this suspension will provide some incentive for Petty Officer M_ to get his personal life in order.

920501:	BUPERS advised that it is PERS 83 policy not to suspend a general discharge as it is considered insufficient motivation to maintain good performance.  Applicant may be either discharged with a general discharge now or retained with a Pg. 13 counseling.

920513:	BUPERS directed the Applicant's discharge under honorable conditions (general) 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 19920515 under honorable conditions (general) for misconduct due to the 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.  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 two documented incidents of spousal abuse to include assault with a deadly weapon.  No other narrative reason other than the commission of a serious offense more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

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 inequity must have existed during the period of enlistment in question.  No such error or inequity 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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate the discharge sufficient to warrant an upgrade.  Relief not warranted.

The Applicant 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.  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), effective 15 Aug 91 until 
04 Mar 93, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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.