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

ex-RMSA, USN
Docket No. ND03-01156

Applicant’s Request

The application for discharge review was received on 20030625.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant listed the Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A personal hearing was conducted in Washington, D.C. on 20040902.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was 4-1 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, as stated

Applicant’s issues, as stated on the application:

Issue 1.  “Distinguished Members of the Board:

Described herein are the events ultimately culminating in my separation from the United States Navy under General Discharge provisions. My entry into the United States Navy commenced on December 12, 1993 and was terminated on September 3, 1997.

During the 2 year period of my Service with the Navy Special Warfare Group-Coronado, San Diego, California, I served impeccably as a United States Navy SEAL with SEAL Team 3.

Since the age of 12 it was my life’s ambition to become a United States Navy SEAL and serve my country honorably. Accepting nothing less, I achieved my life’s objective only to have it crushed by a forced decision to either provide for the psychological needs of my wife and unborn child, or to deploy and possible lose my family to a fatal tragedy. My choice resulted in my expulsion from the United States Navy.

The following pages are a chain of events in chronological order, starting with courses completed in my Naval career and last evaluation report before my home situation erupted to the final letter to CDR. H_ (commanding officer, SEAL Team 3) explaining my wife’s condition.

It is my request of the counsel to review the events that took place during my last days in active duty at SEAL Team Three. In conclusion to the review I hope your decision will result in an understanding that I had no choice but to not deploy and therefore resulting in my misconduct and general discharge from active duty.

I am currently speaking with a Naval Reserve Recruiter and do desire to join. To abet in processing I am requesting that my discharge and re-entry code be up-graded so I can be assigned to Naval Special Warfare Reserve Unit.

Reference:

NCI A_ N_ B_ Jr. (Reserve Recruiter)
(address and telephone numbers deleted)

Respectfully submitted;

J_ L_ S_ B_”

Issue 2.  “We contend the discharge is too harsh.  Applicant's wife was suffering from severe depression and was believed to be suicidal.  It was recommended by a psychologist that he not deploy but remain on shore duty during this crisis.  See statements from Dr. B_ and Cdr. L_.”

Documentation

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

Twenty-two pages from Applicant’s service record
Applicant’s DD Form 214 (2)
Statement from Dr R. T. B_ dtd 15 Jul 97
Evaluation report dtd 2 Sep 97
Memorandum for Commander, 380th CRC battalion dtd 16 Dec 03
Three pages from Applicant’s medical record

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	930806 - 931212	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  931213		Date of Discharge:  970903

Length of Service (years, months, days):

	Active:    03  08  21
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  52

Highest Rate:  RMSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.80 (1)	Behavior:  3.80 (1)		OTA:  3.80 (4.0 evals)
		 3.00 (2)		       4.00 (2)			3.43 (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 3630605.

Chronological Listing of Significant Service Events:

970702:	Retention Warning:  Advised of deficiency (You have made statements to the fact that you are not willing to deploy with your unit and carry out all duties as prescribed in your orders.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

970710:	Applicant to unauthorized absence 1800, 970710.

970711:	Applicant from unauthorized absence 0725, 970711.

970718:	NJP for violation of UCMJ, Article 86: Absence without leave, violation of UCMJ, Article 87: Missing movement on 970710, violation of UCMJ, Article 92: Failure to obey a lawful order or regulation.
	Award: Forfeiture of $590 per month for 2 months, extra duty for 45 days, reduction to RMSA.  No indication of appeal in the record.

970826:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

970826:	Applicant advised of his rights and having consulted 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.

970826:	Commanding Officer directed discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense. 

020328:	NDRB documentary record review Docket Number ND01-01103 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970903 with a general (under honorable conditions) for misconduct due to commission of a serious offense (A & 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).

Issues 1-2.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  A General discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by nonjudicial punishment proceedings for violations of Articles 86, 87 and 92 of the UCMJ.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant’s statements and documents provided contend he was required to attend to his wife’s condition and could therefore not deploy.  While he may feel that his family problems were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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 87, missing 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