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

ex-GMG3, USN 
Docket No. ND03-01220

Applicant’s Request

The application for discharge review was received on 20030711.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record 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 20040514.  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 unanimous that the character of the discharge shall not change.  The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I am petitioning for an upgrade due to the following reasons.  I was discharged from the US Navy because of Adultery.  Before I was discharged with and other than honorable, I filed a letter with my command from my wife stating that we were separated when my adultery occurred.  We were both living at separate locations, and had went on with our lives, even though neither one of us had filed for divorce.  My wife had said that she would file, but we were short on money at the time because of the separation.  About a year after being separated from my wife, my lady friend at the time had become pregnant, and before she had our baby, we had also separated.  When I received a letter from the State of California at my command, stating that I was to go to court over Child support, my command got involved in the matter and I was taken to mast for adultery.  I feel that due to my Military Record, and due to the circumstances that I should not have been discharged.  Another point that I have is that originally my Commanding Officer first told me that she was going to reduce me one pay grade to E-4 and have me transferred from Brig duty.  Later, after the mast had ended, I was called back 30 minutes later and then she told me that she had changed her mind, and that I was to be discharged with other than honorable.  I pleaded with her not to, but in the end, I was still discharged.  I ask for this upgrade, because I still want to finish up my 20 years of service.  I am getting close to 35 years of age and ask you to please consider my request for this upgrade.  Over the years I have grown as a person and I know that I should have been totally divorced before getting involved in other relationships.  Please give me this chance to be able to return to active duty.  Please consider my past Military Record, and my first enlistment.”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	880408 - 880705	COG
	Active:   USN			880706 - 930702	HON

Period of Service Under Review:

Date of Enlistment:  930703		Date of Discharge:  961011

Length of Service (years, months, days):

	Active:    03  03  09
	Inactive:  None

Age at Entry:  23			Years Contracted:  4

Education Level:  12			AFQT:  57

Highest Rate:  GMG2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.90 (2)	Behavior:  4.00 (2)		OTA:  4.00
Performance:  3.00 (1)	Behavior:  3.00 (1)		OTA:  3.00

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR (2), GCM (2), NER, AFEM, NDSM

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

950817:	Retention Warning: Advised of deficiency (Spousal abuse and domestic violence.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
	
960731:	Superior Court of California, County of San Diego, Family Court: Paternity finding.

960828:	NJP for violation of UCMJ, Article 134: Wrongfully have sexual intercourse with a women not his wife from November 1994 to December 1994.
	Award: Forfeiture of $677 per month for 2 months, reduction to GMG3.  Forfeiture for 1 month suspended for 6 months.  No indication of appeal in the record.

960906:	Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

960906:	Applicant advised of 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.

961011:	Commanding Officer directed 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 19961011 with a general (under 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.  A characterization of service of general (under honorable conditions) is warranted when the 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, and adverse counseling entries.  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 to honorable would be inappropriate.  Relief denied.

The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Relief, is therefore, denied.

The following is provided for the edification of the applicant.  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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  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