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

  

 ex-TM2, USN
Docket No. ND99-00619

Applicant’s Request

The application for discharge review, received 990402, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant listed Department of Veterans Affairs as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000201.  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 of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/ PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  Board erroneously found that TM2 R______ committed misconduct by reason of civilian conviction.

2.  The record of proceedings does not properly reflect the content of the Board.

3.  First, let me begin by calling your attention to W. R_______'s final evaluation.  His military bearing, personal behavior, and overall evaluation are recorded as 3.4. The Board hearing his case at discharge commented on his ability to do his duty so effectively in the presence of adverse factors.

4.  Secondly, I wish to address Letters of Commendation for 19 Jan to 28 Feb 1991, and 6 May to 9 May 1990, as well as a Citation for his performance of 1991 in support of Operation Desert Storm.  These awards show that Mr. R_______ as an outstanding service member and an asset to the United States Navy.

5.  Addressing next the marriage of Mr. R______, from the onset, there were marital problems, mostly over money and the fact that Mr. R______'s wife was unwilling to give up a lifestyle of partying.  Testimony at the time of discharge speaks of this in detail.  The government's case against Mr. R_______ was based on a limited number of facts and false statements and accusations made by his spouse.  The sole witness for the government, Mrs. B_____ B_____ based her impressions on information provided by Mrs.  R______.  During the proceedings it was proven that statements made by the Respondents wife were untrue.

6.  Mr R_______ should and has not minimized his responsibility for the physical violence that occurred (accidently head butting) and took all blame for continuing to argue verbally with this spouse.  The Minister of the church made W. Randolph feel that all avenues should be explored before considering-divorce, therefore prolonging the marital problems.  There is no excuse for physical violence in a relationship and W. Randolph has expressed great regret and shame over this.  But I ask this Board to consider the mitigating circumstances that lead up to the final confrontation.

7.  Mr R______ was an outstanding member of the Armed Forces and served with excellence.  His problems were all marriage related.  Even at the apex of his problems, he performed his military duties in an above average manner.  His discharge was due to marital problems alone, with several incidents recorded in his record alluding to failure to maintain his wife, abuse, et cetera.  The proceedings proved that Mr. R______ was a
victim of manipulation by a drug addicted spouse who was out of control and lied repeatedly and used Federal and State Agencies to continue her lifestyle.

8.  To penalize Mr. R______ with an Other Than Honorable Discharge, I feel is an injustice.  As his legal representative, I respectfully request that the Board review all the evidence of file carefully before rendering a decision in this case.  I believe that there is ample evidence in the record to support our contention, Mr R______'s as well as mine, that he should be afforded an Honorable Discharge or at the very least Under Honorable Conditions.

Documentation

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

Copies of DD Form 214 (2)
Copy of DD Form 215
Letter from BUPERS
Copy of Letter of Deficiency

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		880825 - 920626	HON
	Inactive: USNR (DEP)	870709 - 880824	COG

Period of Service Under Review:

Date of Enlistment:  921120		Date of Discharge:  960612

Length of Service (years, months, days):

	Active:    03  06  23
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  33

Highest Rate:  TM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.45 (4)	Behavior:  3.20 (4)		OTA:  3.35

Military Decorations:  None

Unit/Campaign/Service Awards:  JUMC, NUC, MUCwb*, BATTLE"E", SASMwb*, KLM, SSDRwb* 

Days of Unauthorized Absence:  None 

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

921120:	Reenlisted at SERVSCOLCOM ORLANDO FL for 4 years.

940310:	NJP for violation of UCMJ, Article 86: Absent without leave, violation of UCMJ, Article 92: Failure to obey a lawful order.
	Award:  Reduction to E-4 (suspended for 6 months).  No indication of appeal in the record.

940330:	Letter of Substandard Service from Chief of Naval Personnel.

950831:	Civil conviction at New London Superior Court for breach of peace.
		Sent:  60 days in jail.
 
951025:	NJP for violation of UCMJ, Article 86: Absent without leave.
	Award:  Reduction to E-4 (suspended for 6 months).  No indication of appeal in the record.

951113:	Counseling:  Advised of deficiency (Per MILPERSMAN Article 6210120, you are required to provide adequate and continuous support for your lawful family members), notified of corrective actions and assistance available. 

960229:	Counseling:  Advised of deficiency (Support of dependents), notified of corrective actions and assistance available.

960304:	Naval Submarine Support Facility, New London notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of serious offense as evidenced by Commanding Officer's NJP of 951025 and 940310, misconduct due to civilian conviction, and misconduct due to a pattern of misconduct.

960304:  	Applicant advised of his rights and having chosen to consult with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

960308:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to commission of a serious offense, misconduct due to a civilian conviction and misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended the separation be suspended for 12 months.

960409:	Counseling:  Advised of deficiency (Support of dependents), notified of corrective actions and assistance available.

960418:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due commission of a serious offense as evidenced by commanding officer's NJP of 951025 and 940310, misconduct due to civilian conviction, and misconduct due to a pattern of misconduct. 

960517:	Letter of Deficiency sent to CNP concerning applicant’s Administrative Discharge Board.

960528:	BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 960612 under other than honorable conditions for misconduct due to a pattern of misconduct (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

In the applicant’s issue 1, the Board found that the applicant was discharged for misconduct – pattern of misconduct.  The Board found that the applicant was properly discharged for the pattern of misconduct.  The ADB’s findings are irrelevant to the reason for discharge.

In the applicant’s issue 2, the Board does not make determinations concerning Administrative Discharge Boards.  The applicant and counsel submitted a Letter of Deficiency to the Chief of Naval Personnel, which is taken into consideration for a member’s discharge.

In the applicant’s issue 3 and 4, the Board found that unfortunately his misconduct overshadowed his otherwise creditable service.
.
In the applicant’s issues 5 and 6 and 7, the Board found that the applicant’s age, education level, and test scores qualified him for enlistment.  While he may feel that his personal/marital problems were a factor that contributed to his actions, the record clearly reflects his pattern of misconduct and demonstrated that he was unfit for further service.  The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions.

The Board disagrees with the applicant/counsel’s statement 8 that “to penalize Mr. R______ with an Other Than Honorable Discharge, I feel is an injustice.”  The characterization of a discharge is not a penalty, but rather an accurate characterization of a member’s enlistment.  During this member’s enlistment, he was found guilty at two non-judicial punishments, received a letter from the Chief of Naval Personnel for substandard service and had a civilian conviction resulting in 60 days in jail.  The applicant’s service was accurately characterized as other than honorable.  Relief is denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C, Change 9, effective 
22 Jul 94 until 02 Oct 96), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A PATTERN OF MISCONDUCT. 

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article [e.g., 86, for unauthorized absence for a period in excess of 30 days] if adjudged at a Special or General Court-Martial.

C.  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.  

D.  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.

E.  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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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
		Washington Navy Yard
		720 Kennon St SE Rm 309
		Washington, D.C.  20374-5023