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

 ex-EM3, USN
Docket No. ND99-00913

Applicant’s Request

The application for discharge review, received 990624, requested that the characterization of service on the discharge be changed to Honorable conditions.  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 000331.  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:  GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630610.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  DD214 Block #28 not a true reason for separation “Misconduct”.  Administration Board Review convened on November 6, 1996.  The Board findings were that I, EM3 R___ "Has Not" committed misconduct due to commission of serious offenses.  The Board also found EM3 R___ "Has Not" committed misconduct due to a civilian conviction.  In a recommendation by a vote of 3 to 0, the Board recommended retention.  Copy of this report is included for you review.  My contentions are that reason for separation is in error as it contradicts findings and recommendation of Administrative review Board signed by D___ B___, LCDR, USN, Senior member.

2.  Block #24 Character of Discharge "General (Under Honorable Conditions). I content the character of Service is in error as it is directly related to Block 28 addressed in issue #1.  Upon you review of these documents I request correction to Block #24 as I believe it should Read "Honorable".

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		890201 - 920128	HON
	Inactive: USNR (DEP)	881121 - 890131	COG

Period of Service Under Review:

Date of Enlistment:  920129		Date of Discharge:  970305

Length of Service (years, months, days):

	Active:    05  01  05
	Inactive:  None

Age at Entry:  21			Years Contracted:  5 (10 months extension)

Education Level:  13			AFQT:  28

Highest Rate:  EM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.92 (5)	Behavior:  4.00 (5)		OTA:  3.88

Military Decorations:  None

Unit/Campaign/Service Awards:  GCA(2), BATTLE"E"RIBBON, SSDR, NDSM, AFEM, SASMwb* 

Days of Unauthorized Absence:  None 

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MILPERSMAN, Article 3630610.

Chronological Listing of Significant Service Events:

920129:	Reenlisted onboard USS WARASH (AOR-5) for 5 years.
 
931222:	Civilian conviction at San Diego Municipal Court for infliction of injury on spouse or cohabitee (California Penal Code 273.5 (A)).
	Sent:  3 years probation, fined $30.00 in administrative fees, stay of execution of fines granted for 30 days, $30.00 to crime victims fund, participate in public service program for 45 days, 5 days, credit for time served - 40 total days to be completed, attend and complete Navy Family Advocacy Program and show proof of enrollment on 940322 and proof of completion on 950322.

961009:	Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to Commission of a Serious Offenses (two time spouse abuse), by reason of misconduct due to civil conviction and by reason of Family Advocacy Treatment Program Failure as evidenced by the letter of the Commander, Naval Base San Diego dated 960917.

961021:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ, Article 27B, elected to appear before an Administrative Discharge Board.

961114:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant has not committed misconduct due to a commission of a serious offense, and has not committed misconduct due to a civil conviction, but has failed Family Advocacy Treatment Program, recommended retention.

961127:	Commanding officer forwarded to Chief of Naval Personnel (PERS-832) concurring with the boards finding by reason of misconduct due to commission of a serious offense, by reason of misconduct due to civil conviction and by reason of Family Advocacy Program failure.  Commanding officer’s comments (verbatim): I concur with the findings of the Board but I disagree with the recommendation, EM3 R____ should be separated from the naval service for failing the Family Advocacy Treatment Program. 

970127:	Assistant Secretary of the Navy (M&RA), approved Chief of Naval Personnel recommendation for applicant discharge for misconduct due to civil conviction by reason of Family Advocacy Treatment Program failure with a characterization of General Under Honorable Conditions.

970211:	BUPERS directed the applicant's discharge General under Honorable conditions by reason of misconduct due to civil conviction.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 970305 General (under Honorable conditions) for misconduct due to civil conviction (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).

In the applicant’s issue 1, the Board determined this issue is without merit.  The applicant claims the reason for separation is in error as it contradicts findings and the recommendation of the Admin Separation Review Board.  The applicant is correct that the Admin Separation Review Board recommended retention and determined that the applicant had only failed the Family Advocacy Treatment Program and had not committed misconduct due to commission of a serious offense or misconduct due to a civilian conviction.  The applicant’s Commanding Officer, however, disagreed with the recommendation of the Admin Board and recommended separation based on the applicant’s failure of the Family Advocacy Treatment Program.  The case was then forwarded to the Chief of Naval Personnel, and then the Assistant Secretary of the Navy (M&RA) for review and final decision.  Both supported the Commanding officer’s recommendation for separation.  The recommendation for retention, proposed by the Admin Separation Board, was just a recommendation to the discharge authority and not the final decision.  In this case the final decision was the responsibility of the Secretary of the Navy.  The discharge was proper and equitable.  Relief denied.

In the applicant’s issue 2, the Board determined this issue is without merit.  The applicant claims the character of service is in error as it is directly related to the reason for separation.  The reason for separation and characterization of service correctly reflect the applicant’s discharge, as determined by the Assistant Secretary of the Navy (M&RA).  The discharge was proper and equitable.  Relief denied.  

Pertinent Regulation/Law (at time of discharge)

A.  Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 03 Oct 96 until 11 Dec 97, Article 3630610, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - CIVILIAN CONVICTION.

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 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 Street SE Rm 309
		Washington, D.C.  20374-5023