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

FOR OFFICIAL USE ONLY

 ex-AD2, USN
Docket No. ND05-01301

Applicant’s Request

The application for discharge review was received on 20050727.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060413.  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 and reason for discharge shall not change.  The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I feel that someone else besides HM-15 should take a look at the records of former AD2 R_(Applicant).  He stood for all that is the Navy.  He loved his country, Navy, and family probably in that order.”

Documentation

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

Navy and Marine Corps Achievement Medal certificate, dtd June 15, 2003
Navy and Marine Corps Achievement Medal certificate, dtd December 1, 2000
Navy and Marine Corps Achievement Medal certificate, dtd February 15, 2003
Good Conduct Award certificate, dtd September 5, 2000
Command Fifth Fleet citation to Applicant from May to June 1999

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19950214 - 19950319	COG
	Active:   USN	19950320 - 20001031	HON
		USN	20001101 - 20031125	HON

Period of Service Under Review:

Date of Enlistment:  20031126		Date of Discharge:  20041119

Length of Service (years, months, days):

	Active:    00  11  24
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:	None
	Confinement:			None

Age at Entry:  27

Years Contracted:  6

Education Level:  12				AFQT:  51

Highest Rate:  AD2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (1)			Behavior:  1.00 (1)		OTA:  2.29

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy/Marine Corps Achievement Medal(3), Navy Unit Commendation(1), Navy “E” Ribbon(2), Good Conduct Medal(2), Armed Forces Expeditionary Medal(1), Armed Forces Service Medal(1), Sea Service Deployment Ribbon(3), National Defense Service Medal(2) Navy/Marine Corps Overseas Service Ribbon(4), NATO Medal(1), Pistol Marksmanship,(1), Kosovo Campaign Medal(1), Letter of Commendation(1)

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

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

Chronological Listing of Significant Service Events: 

031126:	Reenlisted this date for a term of 6 years.

041026:	NJP for violation of UCMJ, Article 128, Assault.
	Date of Offense:  041009
	Award:  Forfeiture of $250.00 pay per month for 2 months (suspended for 6 months), extra duty for 45 days, reduction to E-4 (suspended for 6 months).  No indication of appeal in the record.

041116:	Applicant notified of intended recommendation for discharge by reason of commission of a serious offense.  Applicant notified that if separation is approved the least favorable characterization of service possible is under other than honorable conditions.

041116:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

041119:	DD Form 214:  Applicant discharged with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense, authority:  NAVMILPERSMAN 1910-142.

Service Record contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20041119 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of general (under honorable conditions).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  The Board presumed regularity in the conduct of governmental affairs (E).

By regulation, a discharge shall be deemed proper, unless it is determined that an error of fact, law, procedure, or discretion has substantially prejudiced the rights of the Applicant.  The Applicant was discharged with a general (under honorable conditions) by reason of misconduct due to commission of a serious offenes.  A review of the Applicant’s service record convinced the Board that a preponderance of evidence exists to support the Applicant’s basis for separation by virtue of his NJP on 20041026 for UCMJ Article 128, assault.  The record further reveals that the Applicant was properly processed and notified for separation by reason of misconduct due to the commission of a serious offense on 20041116 with a least favorable characterization of under other than honorable conditions.  On the same day, the Applicant waived all of his rights.  On 20041119, the Applicant was discharged with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense.  Based upon the above review, the Board unanimously concluded that the Applicant’s discharge processing was in substantial compliance with applicable statutes, rules, and regulations.  Despite the Applicant’s contentions, The Board could find no error of fact, law, procedure, or discretion that might afford the Applicant relief.  Thus, the Board concluded that relief is not warranted.

Regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment.  Furthermore, there are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis of characterization for a Sailor’s overall service.  The incident need not result in formal punishment to be properly used to characterize a Sailor’s service.  When the service of a member of the U.S. Navy has met the standard for acceptable conduct and performance, it is appropriate to characterize that service as honorable.  A general (under 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 a nonjudicial punishment proceeding for a violation of UCMJ Articles 128, assault.  The Applicant’s misconduct reflects his failure to meet the minimum standards required for an honorable discharge.  Relief is not warranted.

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 25 April 2005, Article 1910-142 [formerly 3630605], SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 128, assault.

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.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

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