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

 ex-MM3, USN
Docket No. ND02-00534

Applicant’s Request

The application for discharge review, received 020213, requested that the characterization of service on the discharge be changed to general/under 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 021206.  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, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

. 

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  My discharge was inequitable because it was based on one isolated incident in 40 months of service with no other adverse action.  I never even had so much as received EMI.  All my evals (which are enclosed) where 3.0 or higher except for the captains mast eval, the last eval before captains mast was a 4.29 along with an early promote.

2.  The discharge is improper because part of the charges for captain's mast was adultery even though my wife and I were legally separated and living apart at the time.  I would also like to add that the student at the time (MM3 D_) is now my fiancé and the mother of my 8 month old son J_ L_ E_.  I know that fraternization was wrong but should I continue to be punished for falling in love, because if I hadn't I wouldn't have a beautiful son now.

3.  The discharge is improper because I was denied legal counsel by Navy legal because my wife at the time was using there service and they said it was a conflict of interest.  Buy the time I could speak to a lawyer about my discharge the paper work was completed and submitted.

4.  Thank you for your time.

Documentation

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

Evaluation report and counseling record dated December 3, 1997
Evaluation report and counseling record dated July 16, 1998
Evaluation report and counseling record dated January 26, 1999
Evaluation report and counseling record dated March 14, 2000
Evaluation report and counseling record dated April 5, 2000
Applicant's DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	960618 - 970611	COG
	Active:   USN 			970612 - 990613	HON

Period of Service Under Review:

Date of Enlistment:  990614		Date of Discharge:  001011

Length of Service (years, months, days):

	Active:    01  03  28
	Inactive:  None

Age at Entry:  20			Years Contracted:  6

Education Level:  12			AFQT:  80

Highest Rate:  MM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.80 (5)	Behavior:  3.20 (5)		OTA:  3.37

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

990614:	Applicant reenlisted for 6 years.

000328:	Psychiatric evaluation:  Axis I: Adjustment disorder with mixed disturbances of emotions and conduct.  Alcohol abuse, rule out dependence.  Rule out: PTSD.  Rule out: MMD.  Axis II: Personality disorder, NOS, with antisocial and borderline features.

000329:	NJP for violation of UCMJ, Article 92: Failure to obey by wrongfully fraternizing with student personnel about March 2000, violation of UCMJ, Article 134: Wrongfully have sexual intercourse with MM3, a married woman not his wife about March 2000.
	Award: Forfeiture of $656 per month for 2 months, oral reprimand, reduction to MM3.  No indication of appeal in the record.

000331:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of a personality disorder and misconduct due to the commission of a serious offense.

000331:	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.

000412:	Commanding Officer recommended discharge under other than honorable conditions by reason of a personality disorder and misconduct due to the commission of a serious offense.

000728:	CNPC 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 001011 under other than honorable conditions for misconduct due to commission of a serious offense (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).

Issue 1.  Despite the positive aspects of the Applicant’s record, a characterization of service of under other than honorable conditions is warranted when the service member's conduct constitutes a significant departure from that expected of a sailor.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) on one occasion for the commission of a serious offense.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  An upgrade would be inappropriate.  Relief denied.

Issue 2.  The record states the student was married with whom the Applicant had sexual relations.  Therefore, the Applicant committed adultery, no matter what his own married status was at the time.  While he may feel that falling in love was a factor that contributed to his actions, the record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.  

Issue 3.  The Applicant failed to provide sufficient documentation to support his allegation that he was improperly denied legal counsel for his administrative separation.  The Board found no indication in the record that he was improperly processed for separation.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity 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.  Relief not warranted.

The Applicant 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.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 30, dated 7 Nov 00, effective 30 Aug 00 until 24 Jan 01, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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 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