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NAVY | DRB | 2001_Navy | ND01-00681
Original file (ND01-00681.rtf) Auto-classification: Denied


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

ex-PR3, USN
Docket No. ND01-00681

Applicant’s Request
The application for discharge review, received 010420, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to administrative. 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 011127. 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 and narrative reason 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 am requesting mostly that the narrative reason for separation be changed to administrative or something more private or less discriminating to me. I would like to have my character of service upgraded to honorable if possible. I was given a choice by the executive officer of NAS JAX to stay in the navy or get out to be with my wife and kids everyday. To be a better husband and father I was never told if I was put out or asked if I wanted to get out and chose to do so that block 28 on my DD 214 would state misconduct if I knew that which the executive officer asked me if I wanted to stay in the navy I would have said yes. I don't feel that after 7 years and four months of outstanding service I should have to have misconduct on my DD 214 for the rest of my life. I had two incidences in my time in the navy and last incidence was an isolated incident like my first one and I should not have misconduct on block 28. Some of accomplishment that I have enclosed should help you understand I always tried to do my best and be a good sailor. Please consider my request and thank you.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Letter of Appreciation
Letter of Commendation
Copy of Applicant's "A" School and Seal/UDT training approval from CO
Copy of Evaluation Report & Counseling Record (2pgs)
Copy of Enlisted Performance Evaluation Report

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN               930210 - 990206  HON
         Inactive: USNR (DEP)     920326 - 930209  COG

 Period of Service Under Review :
Date of Enlistment: 990207               Date of Discharge: 000626

 Length of Service (years, months, days):

         Active: 01 04 19
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 45

 Highest Rate: PR3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA                  Behavior: NMA             OTA: NMA

Military Decorations: None

 Unit/Campaign/Service Awards: GCM, NM, AFSM, SASM, NUC, SSDR, AFEM

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 :

990207:  Reenlisted at NAS Norfolk VA for 4 years.

 000602:  Civil Offense: Authorities dispatched to Evansville, Indiana on a domestic battery call. Police determined that the spouse of D___ A. H____ had two black swollen eyes. Witness informed police that the victim's husband, D____ R. H___, had assaulted her. Husband arrested for battery.

000605:  Civil conviction at Vanderburgh Superior Court for Domestic Battery ( A Class A Misdemeanor).
         Sentence: NO AJUDICATION FOUND.

000614:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
000614:          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.
000623:  Commanding Officer, Naval Air Station, Jacksonville authorized discharge general under honorable conditions by reason of misconduct due to the commission of a serious offense. Commanding officer’s comments: PR3 H___ was on leave when civilian authorities were dispatched to his residence located in Evansville, Indiana on 000602. Upon arrival, the police discovered that PR3 H___'s spouse had two black eyes that were also swollen. Mrs H___ was interviewed on 000607 by LNC (SW) D____, NAS, Jacksonville, Legal. She stated that PR3 H____ had hit her in the face and the incident occurred at approximately 1200, 000601. During Captain's Mast, PR3 H____ admitted to losing his temper and hitting Mrs H____ due to financial problems. Upon separation, PR3 H____ has agreed to attend anger management course in his home state.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 000626 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 was notified on 000614 of the intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. The separation authority directed the applicant’s discharge as general (under honorable conditions) by reason of misconduct. 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 was responsible for his actions and must accept the consequences of his commission of a serious offense while on active duty. No other narrative reason more accurately describes the nature of the applicant’s discharge. The discharge was proper and equitable. The Board will not grant relief on the basis of this issue.

 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 a change 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      


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