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

 ex-HN, USN
Docket No. ND99-01216

Applicant’s Request

The application for discharge review, received 990917, 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 the American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000530.  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/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. My other than honorable discharge was the result of inadequate and unjust legal counsel.

2.  My overall service in the Navy necessitates my receiving an upgrade to an honorable or general discharge.

3.  The only problems I experienced in the Navy were marital.

4.  Upon leaving the military, I have continued to remain employed and have avoided any conflict with law enforcement.

5.  Since leaving the military, I have conducted my personal affairs in a satisfactory manner which has resulted in my being able to secure a number of personal references.

Documentation

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

Comments from American Legion dated March 14, 2000
Statement
Statement from applicant's girlfriend

PART II - SUMMARY OF SERVICE

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

	Active:   USNR		880624 - 890222	HON
	Inactive: USNR (DEP)	870805 - 880623	COG
		   USNR (DEP)	890223 - 890312	COG

Period of Service Under Review:

Date of Enlistment:  890313		Date of Discharge:  910531

Length of Service (years, months, days):

	Active:    02  02  19
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  35

Highest Rate:  HN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.68 (5)	Behavior:  3.00 (5)		OTA:  3.56

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM 

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

910128:	Retention Warning: Advised of deficiency (You physically abused your spouse on 25 October 1990, 25 November 1990 and 27 January 1991.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
910510:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by assaults consummated by battery on or about 26 October 1990, 19 November 1990, 27 January 1991 and 9 May 1991.

910510:  	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. Applicant objected to separation.

910513:	DAPA found applicant nondependent on alcohol.

910514:	Senior Medical Officer found applicant nondependent on alcohol.

910515:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  Commanding officer's comments (verbatim):  The presence of this mbr in an operational environment seriously impairs combat readiness, security, efficiency and morale.  He has repeatedly battered his spouse and battered his sister after receiving a pg 13 counseling warning.  I strongly recommend that SNM be separated with an other than honorable discharge.

910522:	BUPERS 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 910531 under other than honorable conditions for misconduct due to commission of a serious offense (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 response to applicant’s issue 1, the Board found there was nothing in the records, nor did the applicant provide any documentation, to indicate there existed an error of fact, law, procedure, or discretion at the time of discharge.  There was no rights violation and no basis for relief.

In response to applicant’s issues 2 and 3, the Board found that the applicant must be assuming that his conduct off duty is not a reflection on his overall service.  This assumption is incorrect.  The Board recognizes that serving in the Navy is very challenging to both the Sailor and his family members.  It must be noted that most Sailors serve honorably and well, and therefore, earn their honorable discharges.  The applicant's service is accurately characterized as having been performed under other than honorable conditions.  Relief is not warranted.

In response to applicant’s issues 4 and 5, there is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in the civilian life subsequent to leaving the Service.  However, the Board is authorized to consider post-service factors in the recharacterization of a discharge.  Those factors include, but are not limited to, the following:  evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), and certification of non-involvement with civil authorities (police records check) in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided any documentation of good character and conduct.  Therefore no relief will be granted.  The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge. 

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A), Change 8, effective 
21 Aug 89 until 14 Aug 91, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 128, assault consummated by battery, 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 Street SE Rm 309
		Washington, D.C.  20374-5023