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

 ex-AMEAN, USN
Docket No. ND02-01022

Applicant’s Request

The application for discharge review, received 020712, 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 030331.  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 3630600.

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  Dear Board Members:

I am requesting a review and change of my discharge from The United States Navy.  I received an Other than Honorable discharge on the grounds of adultery.  At the time of my discharge, my now ex-wife and I were already separated and I have included a copy of my divorce decree, which was finalized just two months after my discharge.
I am also including copies of my educational achievements, mainly from my Junior College.  Although, I have just completed, in May, all classes required for graduation from Jacksonville State University, with a Bachelors Degree in Computer Science.
I implore the Board Members reviewing my appeal to grant my request for the change of my discharge from the military service from Other than Honorable to Honorable.  I thank you for your time, consideration and assistance in this matter.

Sincerely,

Documentation

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

Applicant's DD Form 214
Judgment of divorce dated April 16, 1996
Phi Theta Kappa certificate dated March 18, 1998
Associate in Applied Science dated December 21, 1998
Who's Who Among Students certificate dated 1998-99
Certificate for National Vocational - Technical Honor Society dated April 16, 1999
Student score report dated April 2002

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   USN			930216 - 951016	HON

Period of Service Under Review:

Date of Enlistment:  951017		Date of Discharge:  960226

Length of Service (years, months, days):

	Active:    00  04  10
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  12			AFQT:  Unknown

Highest Rate:  AMEAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (1)	Behavior:  3.80 (1)		OTA:  4.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, MUC

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 3630600.

Chronological Listing of Significant Service Events:

951017:	Applicant reenlisted for 4 years.

960111:	NJP for violation of UCMJ, Article 92 (2 specs): Failure to obey order or regulation, violation of UCMJ, Article 134: Adultery.
Date of offenses 4 and 5 January 1996.
	Award: Restriction for 60 days.  No indication of appeal in the record.

960112:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

960112:	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.

960116:	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): AMEAN (Applicant) has been onboard my command less than one month.  In this short time he demonstrated total disregard for good order and discipline in both his military responsibilities and his personal affairs.  His arrival was preceded by numerous NCIS, family advocacy, and base security reports indicating he was convicted at a Summary Courts-martial for having intercourse with a minor.  Despite his conviction, AMEAA (Applicant) failed to learn from his previous mistakes and was again found guilty of adultery.  Due to his unacceptable military and personal behavior, he must be discharged as soon as possible from the Naval service.  Due to the nature and seriousness of the offenses, I strongly recommend characterization of service be Other than Honorable.

960221:	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 960226 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.  The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident during the Applicant’s enlistment, to include the punishment awarded at Captain’s Mast.  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.  In addition to evidence of continuing educational pursuits that was provided, an employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that should also have been provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate the offense for which he was discharged.  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 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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