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NAVY | DRB | 2004_Navy | ND04-00027
Original file (ND04-00027.rtf) Auto-classification: Denied


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

ex-BMSN, USN
Docket No. ND04-00027

Applicant’s Request
The application for discharge review was received on 20031001. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. 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 20040712. 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 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “My C.0 at the time, did not try to understand i was going through a bad divorce, and at the same time my two year son was losing a fight with cancer. At this time i was not myself if you look at my service record you will see I was a good salior every were I was station. At one point was ranked number #1 as a petty officer. Always look at for my good work and abilty to get things done.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Partial transcript from Department of Veterans Affairs, dated July 26, 1997 (10 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     880513 - 880522  COG
         Active: USN                        880523 - 930401  HON

 Period of Service Under Review :
Date of Enlistment: 930402               Date of Discharge: 970423

 Length of Service (years, months, days):

         Active: 04 00 22
         Inactive: None

 Age at Entry: 24                          Years Contracted: 6

 Education Level: 12                        AFQT: 00

 Highest Rate: BM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.90 (4)    Behavior: 3.95 (4)                OTA: 3.95        4.0 eval
 Performance: 3.00 (1)    Behavior: 2.00 (2)                OTA: 2.00        5.0 eval

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM, CAR, SASM (2), SSDR, NUC, NER, KLM(K), GCM

 Days of Unauthorized Absence: 4

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.

 Chronological Listing of Significant Service Events :

930402:  Applicant reenlisted for 6 years.

960405:  Applicant arrested by San Diego Police department for spousal abuse. Charges were later dismissed due to spouse’s failure to appear. [Extracted from Commanding Officer’s letter dated 970328.]

960716:  Applicant’s son diagnosed with bilateral retinoblastoma (cancer).

961011:  Applicant to unauthorized absence 0701, 961011.

961015:          Applicant from unauthorized absence 0700, 961015 (4 days).

961016:  Applicant referred to Family Advocacy Center (FAC) 960801, following allegations of a subsequent physical confrontation that occurred sometime in July 1996. FAC determined the allegations to be unsubstantiated .

961223:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0701, 961011 to 0700, 961015 (4 days/surrendered).
         Award: Restriction and extra duty for 45 days, reduction to BMSN. Reduction suspended for 6 months. No indication of appeal in the record.
970115:  Spousal abuse substantiated by Case Review Committee (CRC). CRC prescribed a weekly treatment plan for Applicant until his anticipated humanitarian discharge.
970205:  CRC reviewed case again and them terminated him from the Family Advocacy Program due to Applicant’s failure to comply appropriately with the treatment plan.
970208:  Applicant issued a military protection order.

 970224:  Applicant arrested by Dallas Police Department Youth and Family Crimes Division for Class C assault against spouse (misdemeanor).

970225:  Civil Conviction: Municipal Court, City of Dallas, TX for violation of assault on 970224.
 Pled: Pled guilty.
Sentence: Fine $200.00 and released on own recognizance.
970225:  Applicant returned to spouse’ residence and was again removed by Dallas Police for disturbing the peace. Dallas police were called the same evening by Applicant’s spouse because she was receiving threatening phone calls from Applicant. [Extracted from Commanding Officer’s letter dated 970328.]
970303:  Vacate reduction to BMSN awarded at CO’s NJP dated 961223 due to continued misconduct.

970303:  NJP for violation of UCMJ, Article 92 (3 specs): Failure to obey a lawful order or regulation.
         Award: Forfeiture of ½ months pay, restriction and extra duty for 45 days, reduction to BMSA. Forfeiture and restriction suspended for 6 months. No indication of appeal in the record.
970307:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
970310:  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.
970328:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

 970414:  Commander, Naval Special Warfare Command directed 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 19970423 under other than 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 available 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 other than honorable conditions 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 award of nonjudicial punishment (NJP) on two occasions, which included violations of the UCMJ that are considered serious offenses, termination from the Family Advocacy Program by the Case Review Committee (CRC), and a civil conviction from Dallas, TX Municipal Court. 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. An upgrade to honorable is inappropriate. Relief denied.
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 additional documentation to support any claims of post-service accomplishments or any other evidence relating 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 14, effective
03 Oct 96 until 971212, Article 3630605, 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      

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