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

 ex-AD3, USNR(TAR)
Docket No. ND00-01009

Applicant’s Request

The application for discharge review, received 000829, 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 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  I believe that the discharge given to me was unjust since I was promised by my Squadron Commander that my discharge would be Honorable with the notation of "Failure to adjust to military life" entered in block #28 of the DD-214.

2.  I was told the reason I was being discharged was because of the problems I was having with my wife at the time.  We had agreed to separate on friendly terms since we could not get along with each other.  Following the advice and directions of my Section Chief I arranged through my Squadron Commander the procedures for visiting my children.  However, each time I did someone told the Squadron Commander that I was being abusive to my wife.  I was told that my wife reported it to my commander; however, she insisted that she had told him nothing of that nature.  Sometimes I was accused of being abusive when I had not even visited my wife.  I even took some classes that might help me cope with my situation, such as "Stress Management" and "Victoms Awareness" etc.  My wife was also offered the same type of classes, but she refused.  Finally the Squadron Commander was tired of being involved and offered me the discharge refered to in #1 above.

3.  Other than the domestic problems above, my job performance was good.  My supervisors and fellow EM were satisfied with my performance and I had no conflict with anyone.  I enjoyed being in the Navy and serving my country.  I feel cheated because of circumstances beyond my control.  If it were offered now, I would gladly rejoin the Navy and make a career of it.  To have my discharge remain as it is I believe would be an injustice not only to me, but to my family, because of the limitations it offers in employment and other careers.  I pray that my argument will succeed and that you will grant my request for the upgrade I seek.  Thank you for your time.

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:   ARNG		870604 - 870814	HON
	Inactive: ARNG		860226 - 870603	HON
		   ARNG		870815 - 940226	HON	

Period of Service Under Review:

Date of Enlistment:  940725		Date of Discharge:  970620

Length of Service (years, months, days):

	Active:    02  10  26
	Inactive:  None

Age at Entry:  26			Years Contracted:  4

Education Level:  12			AFQT:  61

Highest Rate:  AD3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.67 (3)	Behavior:  3.00 (3)		OTA:  3.19

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, BER

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630605.

Chronological Listing of Significant Service Events:

960128:	Applicant issued a military protective order concerning allegation of spouse abuse.

970113:	Applicant issued a direct order to abide by the military protective order.

970428:	Applicant awaiting trial by Island County Municipal Court for assault by domestic violence.

970523:	Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense as evidenced by your actions in three incidents of domestic violence, dated 28Jan96, 13Jan97, and 28Apr97.

970528:  	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.

970531:	Commanding officer recommended discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.  Commanding officer comments: Though an effective sailor while on work, Petty Officer (applicant's) repeated incidents of domestic violence make him ill-suited to a career in the U.S. Navy.  Despite repeated attempts by the command to change his behavior, I believe his actions are incompatible with continued service.

970609:	Commanding Officer, Naval Air Station, Whidbey Island directed the applicant's 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 970620 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 does not present any evidence, nor did the Board find any evidence that he was “promised” an HONORABLE discharge.  The applicant was separated under honorable conditions with a general discharge, which the Board found to be equitable, based on the applicant’s repeated misconduct.  Relief denied.

In the applicant’s issue 2, the applicant states that “someone told the Squadron Commander that I was being abusive to my wife.”  The applicant goes on to say that “sometimes I was accused of being abusive when I had not even visited my wife.”  The Board cited the investigation reports that were done in each instance that the applicant abused his wife, in addition to the Military Protective Orders that were issued to the applicant on 2 separate occasions as well as the police report filed against the applicant for assault by domestic violence.  The applicant was awaiting trial at the time of his discharge.  The Board found this evidence substantiated the government’s case and the applicant did commit misconduct due to commission of a serious offense.  No relief will be granted based on this issue. 

In response to the applicant’s issue 3, the applicant was given a general (under honorable conditions) discharge because the Navy took the applicant’s service record into account when they characterized his discharge.  The applicant could have received an other than honorable characterization, but instead the Commanding Officer granted leniency and recommended a general discharge.  The Board found that the discharge was issued equitably.  No relief granted.

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 14, effective 
03 Oct 96 until 971212, Article 3630605, SEPARATION OF ENLISTED PERSONNEL 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 134, assault, 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