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

ex-BM2, USN
Docket No. ND03-01279

Applicant’s Request

The application for discharge review was received on 20030724.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests 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 20040526.  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: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

No issues were submitted by the Applicant.
	
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)	880810 - 880911	COG
	Active:   USN			880912 - 920903	HON

Period of Service Under Review:

Date of Enlistment:  920904		Date of Discharge:  970623

Length of Service (years, months, days):

	Active:    04  09  20
	Inactive:  None

Age at Entry:  22			Years Contracted:  4 (39 month extension)

Education Level:  12			AFQT:  38

Highest Rate:  BM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.80 (4)	Behavior:  3.60 (4)		OTA:  3.80 (4.0 evals)
Performance:  3.50 (2)	Behavior:  4.00 (2)		OTA:  3.57 (5.0 evals)

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM (2), NDSM, SASM with Bronze Star, NUC, KLM, N&MCAM, AFEM, SSDR (4)

Days of Unauthorized Absence:  14

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630605.

Chronological Listing of Significant Service Events:

930827:	Spouse Abuse Case Review Committee (CRC) of 930824 has determined that the 930625 case of alleged spouse abuse is unsubstantiated (did not occur).

931001:	Counseled this date concerning deficiencies.  [You being involved in a domestic disturbance on 1 September 1993, in which you struck your wife in the left eye with your fist, causing it to swell.]

931201:	Spouse Abuse Case Review Committee of 931130 has determined that Applicant has been involved in a case of spouse abuse (service member and dependent spouse perpetrators) on 930901.  The CRC recommended the following course of treatment:
	a. Applicant’s attendance at the Men’s Therapy Group
	b. Spouse attendance at Woman’s Group
	c. Couple’s participation in marital counseling upon their completion of both the Men’s Therapy Group and Woman’s Group.

940510:	Spouse Abuse Case Review Committee has determined that this family has been involved in a case of spouse abuse (service member perpetrator) on 940422 based on the following sources: a PMO report and a Family Advocacy Representative interview.  Applicant referred to substance abuse counseling center for evaluation.  Applicant’s continued attendance of the Men’s Therapy Group.

941007:	NJP for violation of UCMJ, Article 86: Unauthorized absence on 0700 to 1455, 940929, violation of UCMJ Article 128: Unlawfully punch and kicked wife and struck her for about 20 minutes.
	Award: Forfeiture of $250 per month for 2 months, reduction to BM3.  Forfeiture suspended for 6 months.  No indication of appeal in the record.

941129:	Spouse Abuse Case Review Committee has determined that Applicant has been involved in a case of Level III spouse abuse (perpetrator) on 941002 based on a family advocacy representative.  This is the third incident.  CRC recommends the following course of treatment:
	a. Applicant referred to substance abuse counseling center for evaluation.
	b. Applicant’s attendance at the Domestic Violence Men’s Program (DVMP).
	c. Applicant’s spouse participating in the Women’s Empowerment Group (WEG).

961015:	Applicant to unauthorized absence 0900, 961015.  Applicant apprehended by Virginia Beach Police for CIG charges only.  Applicant released on $1500.00 surety bond.

961030:	Applicant from unauthorized absence 0730, 961030 (14 days/surrendered).

961210:	Multidisciplinary Case Review Committee (CRC) recommends alcohol evaluation, spouse attend family program of the Naval Alcohol Rehabilitation Center (NARC), individual counseling for spouse.  Spouse to attend a support group for battered spouses.

961218:	Civil Conviction: Virginia Beach General District Court for violation of assault and battery (domestic).
Sentence: Jail for 12 months.  Suspended but for time served.

970226:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to civilian conviction as evidenced by abuse of a family member.

970226:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

970303:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense and civilian conviction, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

970407:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and civilian conviction.

970523:	COMNAVBASE directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  [Extracted from DD Form 214, Block 25.]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970623 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).

The Applicant introduced no decisional issues for consideration by the Board.

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.  An Under Other Than Honorable Conditions 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 unauthorized absence, a civilian conviction of assault and battery and nonjudicial punishment proceedings for a violation of Article 128 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 NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted.  There is no evidence of impropriety or inequity in the Applicant’s discharge.  The Applicant’s misconduct is clearly documented.  Therefore, relief is denied.

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 14, effective 
03 Oct 96 until 971212, Article 3630605, 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