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

 ex-PN3, USN
Docket No. ND04-01036

Applicant’s Request

The application for discharge review was received on 20040614.  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 20041112.  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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Misinformed by chain of command about education benefits for type of discharge.  Did not have grounds to discharge me.”

Documentation

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

Applicant’s DD Form 214
Evaluation report and counseling record, dated September 28, 2000
Evaluation report and counseling record, dated March 25, 2001
Evaluation report and counseling record, dated July 28, 2001
Evaluation report and counseling record, dated March 13, 2002
Evaluation report and counseling record, dated June 30, 2002
Evaluation report and counseling record, dated June 9, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	990413 - 990525	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  990526		Date of Discharge:  030609

Length of Service (years, months, days):

	Active:    04  00  14
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (12 months extension)

Education Level:  9			AFQT:  63

Highest Rate:  PN3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.50 (6)	Behavior:  2.60 (6)		OTA:  3.07

Military Decorations:  ESWS

Unit/Campaign/Service Awards:  SSDR w/2 Bronze Stars, NDSM, CGSPOSR, ESWS, 9mm Pistol Marksman

Days of Unauthorized Absence:  None

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

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

Chronological Listing of Significant Service Events:

000818:	NJP for violation of UCMJ, Article 86.  No further information found in service record.
	Award: Restriction and extra duty for 4 days, reduction to E-2.  Reduction suspended for 6 months.  No indication of appeal in the record.

010807:	NJP for violation of UCMJ, Article 91:  On 010730.  No further information found in service record.
	Award:  Forfeiture of ½ month’s pay for 2 months, restriction for 15 days, reduction to E-3.  Forfeiture and reduction suspended for 6 months.  No indication of appeal in the record.

011130:	Family Advocacy Program Case Review Committee received a report of child neglect identifying Applicant’s children as the alleged victims and Applicant’s wife as the alleged offender.  The allegation will be reviewed by the Case Review Committee (CRC) on 011217.

020110:	Family Advocacy Program Case Review Committee received a report of child neglect identifying Applicant’s children as the alleged victims and Applicant’s wife as the alleged offender.  The allegation was originally scheduled to be will be reviewed on 011217, however, all of the CRC core members were not available for the review.  The CRC will review this allegation on 020117.

020820:	Family Advocacy Program Case Review Committee received a report of child neglect identifying Applicant’s child as the alleged victim and Applicant and Applicant’s wife as the alleged offenders.  The allegation will be reviewed by CRC on 020829.

021003:	Family Advocacy Program Case Review Committee received three reports of alleged mutual spouse abuse.  The allegation will be reviewed by CRC on 021017.

030312:	Family Advocacy Program Case Review Committee received a report of child neglect identifying Applicant’s children as the alleged victims and Applicant’s wife as the alleged offender.  The allegation will be reviewed by CRC on 030320.

030526:	Applicant extended enlistment for 12 months.

030601:	Applicant notified of intended recommendation for discharge with a least favorable characterization of general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

030601:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

030711:	Commanding Officer directed discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments (verbatim): “PN3 B_ (Applicant) is a outstanding personnelman.  He has demonstrated great potential in his performance and military bearing unfortunately his shortcomings and misconduct in his personal life have made him unsuitable for continued naval service.”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030609 with a general (under honorable conditions) for misconduct due to the 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:  Normally, to permit relief, a 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.  Relief not warranted.
  
The Board has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Relief denied.

A characterization of service of under honorable conditions (general) 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 award of nonjudicial punishment (NJP) on one occasion for violation of Article 86, and award of nonjudicial punishment (NJP) on another occasion for violation of Article 91 of the UCMJ which is considered 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 to honorable is inappropriate.  Relief 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.  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), re-issued October 2002, effective 22 Aug 02 until Present, 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