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

 ex-SN, USN
Docket No. ND00-00869

Applicant’s Request

The application for discharge review, received 000705, requested that the characterization of service on the discharge be changed to Honorable.  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 010215.  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).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I am going to school and I would like to be able to have financial help available.  I also did love the Navy and did all that I could to be the best sailor I could be, but I had personal problems with a cheating wife who is also the mother of my only child.  She lied about so much to protect her affair since she also was military.  I told anyone I could tell even her commanding officer and nothing was done, even though I had a witness to the affair. On emotion things got out of control.

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:   None
	Inactive: USNR (DEP)	950209 - 950220	COG

Period of Service Under Review:

Date of Enlistment:  950221		Date of Discharge:  981013

Length of Service (years, months, days):

	Active:    03  05  24
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  39

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (4)	Behavior:  2.25 (4)		OTA:  2.93

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR

Days of Unauthorized Absence:  37 

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:

960508:	NJP for violation of UCMJ, Article 91: Insubordinate conduct toward warrant officer, non-commissioned officer, or petty officer on 22Apr96.
	Award: Restriction and extra duty for 45 days, reduction to SR.  Reduction suspended for 6 months.  No indication of appeal in the record.
980120:	Applicant apprehended and charged with: 1: Aggravated assault/domestic violence, 2: False imprisonment, 3: Battery/domestic violence, 4: Violation of injunction for protection.  Court date unknown at present time.

980305:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0710, 20Jan98 and 1846, 26Feb98 (37 days/surrendered), violation of UCMJ Article 87: Missing movement on 21-25Jan98, 10-12Feb98 and 22-25Feb98.
	Award: Restriction and extra duty for 45 days.  No indication of appeal in the record.

980326:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ, Article 27B, elected to appear before an Administrative Discharge Board.

980407	Applicant issued a military protective order effective until April 30, 1998.

980901:	Special Court-Martial.
	Charge I: violation of the UCMJ, Article 128 (2 specifications):
	Specification 1: Unlawful touch on 20Jan98.
	Specification 2: Unlawful strike on 20Jan98.
	Findings:  to Charge I and specifications thereunder, guilty.  
	Sentence:  Confinement for 131 days.
	
980917:	Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense and misconduct due to Civilian conviction.

980929:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed a serious offense and civilian conviction, that the misconduct warranted separation, and recommended discharge General (under Honorable conditions).

981021:	Commanding officer discharged applicant with a 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 981013 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).

Issue 1.  The applicant states he is going to school and would like to be able to have financial help.  Additionally, he writes, his misconduct was based on emotion, resulting from a cheating wife, and things that got out of control.  The Board is under no obligation to upgrade an individual’s discharge to allow the ex-member to obtain financial assistance for higher education.  The applicant’s personal affairs pertaining to his wife and his behavior do not justify the applicant’s misconduct.  Relief denied.

The following is provided for the benefit of the applicant.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  Mo such error or injustice occurred during the applicant’s enlistment.  Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct.  The applicant did not provide any of these documents.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 
12 Dec 97 until 29 March 2000, 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 86 (unauthorized absence for a period in excess of 30 days) and for Article 87 (missing ship’s 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