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

FOR OFFICIAL USE ONLY

 ex-MA2, USN
Docket No. ND05-00052

Applicant’s Request

The application for discharge review was received on 20040930.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests 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 20050727.  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: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

“I respectfully request the following:

1)  My discharge from the Navy be upgraded to a General under Honorable Conditions.

2)  My re-code be upgraded so it will allow me to get back in the military.

I feel that I should be allowed back in the because I was discharged not because of my military performance, but because of issues in my personal life which did not affect me at work.  I am a hell of a marine and a damn good sailor.  Thank you for your time and consideration of my case.

R/S
[signed] M___ L___ (Applicant)” 

Documentation

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

Applicant’s DD Form 214(USN)
Applicant’s DD Form 214(USMC)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	None
	Active:   USMC 		961203 - 010202	HON

Period of Service Under Review:

Date of Enlistment:  020213		Date of Discharge:  030516

Length of Service (years, months, days):

	Active:    01  03  03
	Inactive:  None

Age at Entry:  23			Years Contracted:  4 

Education Level:  12			AFQT:  52

Highest Rate:  MA2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.50 (2)		Behavior:  1.00 (2)		OTA:  1.57

Military Decorations:  None

Unit/Campaign/Service Awards:  National Defense Service Medal, Sea Service Deployment Ribbon, Meritorious Mast, Rifle Expert Badge (2nd), Sea Service Deployment Ribbon (w/1 bronze star), Marine Pistol Marksman Badge, Marine Corps Good Conduct Medal

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 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events

020213:	Enlisted USN for 4 years.

030321:	Applicant arrested on 030321 for violation of California Penal Code section 273.3; inflicting corporal injury upon a spouse (SDPD case #03030045073).  Applicant released on bailed on 030327. On 030331 Applicant was arrested again by San Diego Police Department for violation of Ca Pc 243D; Battery with serious bodily injury (SDPD Case #03030067989).  Applicant was currently being held at San Diego County’s George Bailey Detention Center pending further hearings.  Applicant being held on a $350,000.00 bond and is charged with four felony and three misdemeanor violations. 
      
030407:	Applicant notified of intended recommendation for discharge the least favorable characterization of service under other than honorable conditions by reason of misconduct due to the commission of a serious offense. 

030407:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights. 

030423:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. 

030506:	Commander, Naval Surface Force, U.S. Pacific Fleet authorized 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 20030516 under other than honorable conditions for misconduct due to commission of a serious offense (A).  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 (B and C).

The Applicant requests an upgrade to his discharge based on his military performance. When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An under other than honorable conditions discharge 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 Board found that the Applicant’s service was marred by two incidents of misconduct, characterized as felony violations under the California penal code:

•	An arrest for domestic violence battery (20030104)
•	An arrest for battery with serious bodily injury (20030330).

 These incidents are considered serious offenses. The Applicant is advised that the commission of a serious offense is not limited only to military misconduct but includes many types of civilian violations and misconduct that may be committed by a service member. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

Additionally, the commission of a serious offense does not require adjudication by nonjudicial proceedings or civilian conviction; however, the offense must be substantiated by a preponderance of evidence.  The board found that the offenses were substantiated based on findings and statements in the civilian investigative case files (SDPD# 03-030045073 & # 03-020849).  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.  The Applicant was provided the opportunity to present his case to an administrative board, but waived that right, thus accepting the discharge recommended in the letter of notification.  Relief denied.  

The Applicant contends that his problems in the Navy can be attributed to “stress in his personal life”. The NDRB recognizes that serving in the U.S. Navy is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharges. In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  The NDRB found that the Applicant's service was equitably characterized.  Relief denied.

The Applicant expresses his desire to have his RE code changed in order to allow his re-enlistment in the service. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces. NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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), re-issued October 2002, effective 22 Aug 02 until Present, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

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