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

ex-GMGSN, USN 
Docket No. ND04-01399

Applicant’s Request

The application for discharge review was received on 20040909.  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 review was conducted in Washington, D.C. on 20041222.  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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I WANT BACK IN THE RESERVES TO CLEAN MY RECORD AND I AM BETTERING MYSELF BY ATTENDING COLLEGE.  PLEASE GIVE ME ANOTHER CHANCE.”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   None

Period of Service Under Review:

Date of Enlistment:  940223		Date of Discharge:  980222

Length of Service (years, months, days):

	Active:    03  11  27	(Excludes lost time)
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  95

Highest Rate:  GMGSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, GCM

Days of Unauthorized Absence:  2

* No marks found in Applicant’s service record

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

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

Chronological Listing of Significant Service Events:

940628:	NJP for violation of UCMJ, Article 92:  Dereliction of duty, violation of UCMJ Article 134:  Disorderly conduct.
	Award:  Forfeiture of $226.00 per month for 1 month, restriction and extra duty for 7 days, reduction to E-2 (Suspended for 6 months).  No indication of appeal in the record.
		
960823:	Tried, convicted and sentenced in the El Cajon Municipal Court for CA Penal Code 273.5 – inflicting corporal injury on spouse or cohabitant on 960823.
Sentence:  Placed on probation for four years, confinement for three days, perform public community service for 15 days and fined $200.00 (suspended for 180 days).  [Extracted from Commanding Officer Letter dated 971212].

970813:	Applicant was apprehended by Chula Vista police department at 2000, 970813 for domestic violence and placed in civil confinement pending trail.

970815:	Involvement with civilian authorities:  Applicant plead guilty in the Municipal court of California, County of San Diego, South Bay Judicial District for violation of CA Penal Code 273.5 – Inflicting corporal injury on spouse or cohabitant on 97Aug15.
	Sentence:  Placed on probation for three years, fined $200.00 and ordered to attend Domestic Violence Class for one year.

970816:	Applicant released from civil confinement and delivered by San Diego County shore patrol to shore intermediate maintenance activity, San Diego, CA for disposition at 0240, 970816.  Retained onboard.

971209:	Applicant notified of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to commission of a serious offense, (two separate violations of CA PC 273.5 – Inflicting corporal injury on spouse or cohabitant) and by reason of misconduct due to civilian convictions on 15 Aug 97 and 23 Aug 96.

971209:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ, Article 27(b), elected to waive all rights.

971212:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and by reason of misconduct due to civilian convictions.  Commanding Officer’s comments: (verbatim):  GMGSN G_ (Applicant) waived his right to an Administrative Board on 9 Dec 97 as reflected on his Administrative Board Procedure Acknowledgement.  Based on the information contained in Enclosures (1) through (6), I recommend he be separated from the Naval Service and the characterization of his service be Under Other Than Honorable Conditions.

980114:	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 19980222 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:  A characterization of service of under other than 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 for violation of Articles 92 (Dereliction of duty) and 134 (Disorderly conduct), which is considered a serious offense of the UCMJ.  Additionally, the Applicant was tried and convicted twice in California Municipal courts for inflicting corporal injury.  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.  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.  

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’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge.   Therefore, no relief will be granted.

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), Change 18, effective 
12 Dec 97 until 29 March 2000, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023