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

  ex-MA3, USN
Docket No. ND05-00191

Applicant’s Request

The application for discharge review was received on 20041110.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing in the Washington D.C. metropolitan area.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation by Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050224.  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. “I feel that my actions in the Navy did not warrant administrative separation.  I never had a chance to make a statement as to what went on.  The misconduct that is on my DD214 has brought discredit to my name especially when other member of my command have committed far worse offenses than me and the whole incident was simply “swept under the rug.”  Also the sentrys that were posted at the gate that feeled out statements came in drunk on duty.” 

Additional issues submitted by Applicant’s counsel/representative (DISABLED AMERICAN VETERANS):

2.  “After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current General Under Honorable Conditions discharge to Honorable.

The FSM served on active service from October 16, 2001 to March 10, 2004 at which time he was discharged by reason of Misconduct. 

The FSM contends the current discharge is improper because appropriate consideration was never provided to allow him or his wife to make statements regarding the circumstances. Said statements are now of record for the Board’s review.

This creates a need for a review of the application of the standard, for the Board to determine that the applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 D, Sect. 407, part 3.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.”

Documentation

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

VA Form 21-22 dtd 041018 (3 pages) 
Applicant’s DD Form 214
Employment reference letter from B_ K_ dated October 16, 2004
Reference letter from A_ B. I_ dated October 9, 2004
Reference letter from L_ A_ C_ dated October 10, 2004
Reference letter from T_ A_ W_ dated October 12, 2004 (2 pages)
Letter from Applicant undated (2 pages)
DAV cover letter dated November 3, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive: 	USNR (DEP)		010508 - 011015	COG
	               	USNR (DEP)		010119 - 010131	ELS
	Active:   	None

Period of Service Under Review:

Date of Enlistment:  011016		Date of Discharge:  040310

Length of Service (years, months, days):

	Active:    02  04  25
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  59

Highest Rate:  MA3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (3)		Behavior:  2.00 (3)		OTA:  2.90

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, PSR, RMR

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:

031109:	NAS Fallon Incident Report indicating Domestic Dispute, Disobeying a Lawful Order, and Disorderly Conduct at Security Sub-Station.  The offender used bodily force (hands/feet). 
         
040210:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service possible general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

040210:  	Having consulted with counsel certified under UCMJ Article 27B the Applicant elected to obtain copies of documents forwarded to the Separation Authority and waived his right to submit written statements.

040217:	Commanding Officer recommended discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense. 

040226:	Commanding Officer Navy Region Southwest directed the Applicant’s general (under honorable conditions) discharge on the basis of misconduct – commission of serious military or civilian offense, with a SPD code of JKQ and Reenlistment Code of RE-4.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040310 with a general (under honorable conditions) for misconduct due to commission of a serious offense (A and 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.  Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  A "serious offense" is defined by the MILPERSMAN as an offense under the UCMJ for which the Manual for Court-martial authorizes a punitive discharge.  Commission of a serious offense does not require adjudication by nonjudicial, judicial proceedings or civilian conviction; however, the offense must be substantiated by a preponderance of evidence.  The Applicant’s Article 92 violation for disobeying a lawful order constitutes a serious offense, thus substantiating the misconduct for which he was separated.   Relief denied.

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 a domestic dispute, disorderly conduct and disobeying a lawful order.  The Applicant’s disobedience to a lawful order is considered a serious offense. 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 denied.

The Applicant contends that he did not have “a chance to make a statement as to what went on.”  The record, however, contains no evidence of any wrongdoing by the Applicant’s chain of command or any individual involved in the discharge processing.  On 20040210, the Applicant signed an Administrative Separation Processing Notice indicating he had consulted with counsel and that the Applicant elected to waive his right to submit written statements.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.   Relief denied.  

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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, documentation of community service, and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient documentation for the Board to consider.  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.  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), 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.  In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 92 failure to obey a lawful order, if adjudged at a Special or General Court Martial.

C.  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.

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

E.  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