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

 ex-MM2, USN
Docket No. ND00-00394

Applicant’s Request

The application for discharge review, received 000209, requested that the reason for the discharge be changed to hardship.  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 000831.  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 1910 - 142 (formerly 3630605).

The NDRB did note an administrative error on the original DD Form 214.  Block 18, Remarks should read: “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 931123 UNTIL 960118, Block 25, Separation Authority should read:  “NAVMILPERSMAN, Article 1910-142” vice “MILPERSMAN 3630600”.  The original DD Form 214 should be corrected or reissued as appropriate. 

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  My discharge of misconduct was a single parent with no care for my son was available ovenight or on deployments.  My Chain of command was aware of my hardship and I was led to believe I would be discharged for hardship.  Later I found out the X.O. did not like it and was told that no matter what I had to find I way or be punished.  I feel this is unfair because I had no control of the situation and Chaplain C_ from NAVSTA Everett did what he could to help me with no success.  This is why I believe my discharge should be changed to a Hardship.

Documentation

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

Copy of DD Form 214
Copy of court documents (9 pages)
Statement from applicant
Four pages from applicant's service record

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		931123 - 960118	HON
	Inactive: USNR (DEP)	930302 - 931122	COG

Period of Service Under Review:

Date of Enlistment:  960119		Date of Discharge:  990120

Length of Service (years, months, days):

	Active:    03  00  02
	Inactive:  None

Age at Entry:  21			Years Contracted:  6

Education Level:  12			AFQT:  85

Highest Rate:  MM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (3)	Behavior:  3.67 (3)		OTA:  3.05	5.0 evals

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, GCM

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:

960119:	Reenlisted for term of six years.

980610:	Applicant briefed concerning conditions of emergency leave.  Applicant instructed to report to USS ABRAHAM LINCOLN on 980616 for WESTPAC deployment.

980610:	Applicant briefed concerning regulations and necessary steps required before request is submitted for reassignment for humanitarian reasons.  Acknowledged that if these steps are not completed by the end of my emergency leave, applicant subject to administrative action and that request could not be submitted until divorce is final on 980624.

980611:	Applicant on emergency leave until 980616.

980617:	Missed ship’s movement enroute to WESTPAC deployment.  [Extracted from Commanding Officer's letter dated 19Jan99.]  No further information found in service record.

990108:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

990108:  	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.

990119:	Commanding officer directed discharge general (under 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 990120 general (under 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 the applicant’s issue 1, the applicant states “my discharge of misconduct was a single parent with no care for my son was available overnight or on deployments.  My Chain of command was aware of my hardship and I was led to believe I would be discharged for hardship.  Later I found out the X.O. did not like it and was told that no matter what I had to find I way or be punished.  I feel this is unfair because I had no control of the situation and Chaplain C_ from NAVSTA Everett did what he could to help me with no success.  This is why I believe my discharge should be changed to a Hardship.”  The applicant was given numerous opportunities by the command to find arrangements for his child.  The applicant states that he was led to believe he would be discharged for hardship.  The Board disagrees with this statement.  The applicant signed a statement on 980610 that to be considered for humanitarian reassignment/humanitarian discharge, several things would have to be accomplished.  One of the items listed was that the applicant’s divorce had to be finalized.  The estimated date for this was 980624.  This was in addition to the applicant obtaining statements from family members and responsible citizens having personal knowledge of the situation and a personal statement indicating the nature of the hardship.  The applicant also acknowledged on 980610 that he would be granted emergency leave from 980611-980616 so that he could set up childcare arrangements.  The applicant failed to meet the ship on 980616, which he knew was his obligation to do.  The ship was enroute for a WESTPAC deployment.  The Board found that the applicant knowingly missed ship’s movement on this day.  The applicant provided no additional information to the Board to explain why this occurred.  Therefore the Board will not grant relief based on this issue.

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 (D).  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), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) 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 15560C), Change 18, effective 
12 Dec 97 until Present, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE.

B.  In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article [e.g., 87, Missed movement] 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 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