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

FOR OFFICIAL USE ONLY

ex-MSSA, USN
Docket No. ND06-00486

Applicant’s Request

The application for discharge review was received on 20060215.  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 20070110.  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.  The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to commission of a serious offense.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

Equity:  Personal circumstances.  
Equity:  Youth.

Documentation

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

Applicant’s DD Form 214 (Service 2)
134 pages from the Applicant’s service record 

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19890227 – 19890228	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  19890301		Date of Discharge:  19930406

Length of Service (years, months, days):

	Active:    04  01  06  (Does not exclude lost time)
	Inactive:  None

Time Lost During This Period:

	Unauthorized absence:  36 days
	Confinement:		  24 days

Age at Entry:  18

Years Contracted:  4

Education Level:  12				AFQT:  37

Highest Rate:  MSSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.9 (4) 	Behavior:  3.0 (4) 	OTA:  3.00 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal

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

GENERAL (UNDER HONORABLE CONDITIONS) / Misconduct - commission of a serious offense, authority:  MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events: 

890302:	Applicant briefed on the Navy drug/alcohol abuse policy.

901122:	To unauthorized absence at 0600.

901222:	Declared deserter.

901229:	Apprehended by civil authorities and returned to military control.

910109:	To confinement.

910131:	Summary Court-Martial.
	Violations of the UCMJ, Articles 85 (Desertion), 86 (Absence without leave), 92 (Failure to obey order/regulation).
	Sentence:  30 days confinement, reduction to E-1.
	CA action 910131:  Sentence approved and ordered executed.

910202:	From confinement.  EAOS changed to 930430.

910306:	Applicant disqualified for submarine duty as a result of disciplinary and/or administrative action.

910612:	Retention Warning:  Advised of deficiency (Habitual tardiness, unauthorized absences, violation of Articles 85, 86, 92 and conviction at summary court-martial for the above Articles), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910912:	NJP for violation of UCMJ, Article 86:  Absence without leave.  Award:  Page 13 entry.  [Extracted from CO’s recommendation for separation.]

920730:	NJP for violation of UCMJ, Article 86.  Specification:  Unauthorized absence at 0715 to 1300, 920715.
	Award:  Forfeiture of ½ months pay for two months, suspended for 60 days.

920814:	NJP for violation of UCMJ, Article 128.  Specification:  Assault on or about 2115, 920726 of dependent wife by striking her on the right jaw with potato.  
	Award:  Reduction to E-1, suspended for 60 days.

921002:	Retention Warning:  Advised of deficiency (Alcohol abuse, spouse abuse/assault, unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

9212xx:	Military Police “visited” Applicant’s home.  [Extracted from Administrative Discharge Board proceedings.]

921228:	Applicant detained by military authorities for suspicion of simple assault (spouse abuse).
	
930125:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense as evidenced by nonjudicial punishments and a summary court-martial conviction.

930126:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

930303:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to the commission of a serious offense, that such misconduct warranted separation, and recommended discharge with a general (under honorable conditions) character of service.  

930310:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments:  “Request expedient handling of this case.  MSSA P_ (Applicant’s) EAOS is 930406… After review of the Record of Proceedings of the Administrative Discharge Board and (Applicant’s) service record, I do not agree with the Board’s recommendation for separation with a General under Honorable Conditions discharge.  I feel that there is sufficient evidence in the member’s record to substantiate misconduct due to serious offense and I think an OTH is appropriate.”  

930316:	BUPERS directed the Applicant's discharge with a general (under honorable conditions) characterization 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 19930406 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 records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

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 or 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 two retention warnings, three nonjudicial punishment proceedings and a Summary Court-Martial conviction for violations of Articles 85, 86, 91, 128 of the UCMJ.  The Applicant’s violation of Article 86, unauthorized absence for a period of 36 days, is the commission of a serious offense.  The Applicant’s violations of Articles 85, 91 and 128 are also serious offenses.  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 Applicant contends that his discharge is inequitable because he had a “terrible marriage” and that he was young.  While the Applicant may feel that his immaturity and family situation was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The following is provided for the edification of the Applicant.  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 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, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Relief would be inappropriate.

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 5, effective 
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 85, desertion, Article 86, unauthorized absence for more than 30 days, Article 92, disobey lawful order/regulation or 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.

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