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

FOR OFFICIAL USE ONLY

ex-CS3, USN
Docket No. ND06-00526

Applicant’s Request

The application for discharge review was received on 20060301.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  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 shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to civil conviction.

The NDRB did note administrative error(s) on the original DD Form 214.  Block 12a, Record of Service, Date Entered AD This Period, should read:  “99  01  20,” Block 18, Remarks, should read:  “CONTINUOUS HONORABLE ACTIVE DUTY FROM 99  01  20 UNTIL 02  11  26,” and Block 24, Character of Service, should read:  “UNDER OTHER THAN HONORABLE CONDITIONS.”  The Commander, Navy Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

Equity:  Post-service.

Documentation

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

Ltr from Applicant, dtd January 19, 2006
Applicant’s DD Form 214  (Service 2)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19981222 - 19990119	COG
	Active:    USN	19990120 -  20021126	HON

Period of Service Under Review:

Date of Enlistment:  20021127		Date of Discharge:  20050304

Length of Service (years, months, days):

	Active:    02  03  08  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  22

Years Contracted:  5

Education Level:  12				AFQT:  58

Highest Rate:  CS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*		Behavior:  NA*		OTA:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Meritorious Unit Commendation, Navy “E” Ribbon, Good Conduct Medal, National Defense Service Medal, Armed Forces Expeditionary Medal, Sea Service Deployment Ribbon (3), Enlisted Surface Warfare Specialist

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 1910-144 (formerly 3630610).

Chronological Listing of Significant Service Events: 

021127:	Reenlisted this date for a term of 5 years.

040829:	Applicant arrested for domestic violence/simple assault.  [Extracted from Commanding Officer’s letter recommending separation.]

041025:	Ltr from Director, Fleet and Family Support Center.
	The Family Advocacy Program Case Review Committee (CRC) reviewed this case on 041019.  The CRC determination in this case was substantiated for partner physical abuse by SW3 Z_ W_ (Applicant) against Ms.  T_ W_.

041113:	Applicant arrested for public drunkenness and domestic violence.  Found guilty of both and received $622.00 fine, 180 days in jail, with 150 days suspended for 30 days.  Jail time to be served on weekends.  [Extracted from Commanding Officer’s letter recommending separation.]

041202:	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 civilian conviction (domestic violence – simple assault).

041228:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

050208:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to civilian conviction, that such misconduct warranted separation, and recommended discharge with an under other than honorable conditions.

Unknown:	Commanding Officer, Naval Construction Battalion Center, Gulfport MS, recommended discharge under other than honorable conditions by reason of misconduct due to civilian conviction.  Commanding Officer’s comments:  “CS3 W_ (Applicant) had his case heard before an administrative board.  They voted unanimously to separate him with an other than honorable discharge.  I fully support the findings of this administrative board.  CS3 W_ was involved in two domestic violence incidents within a three-month period.  I cannot tolerate this behavior from our sailors.  CS3 W_ does not live up to the Navy’s Core Values of Honor, Courage and Commitment.  After reviewing the entire administrative package, I strongly recommend that CS3 W_ be separated from the Navy with his characterization of service being other than honorable.”

050228:	Commander, Navy Region Southeast, authorized the Applicant's discharge with under other than honorable conditions by reason of misconduct due to civil conviction.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050304 by reason misconduct due to civil conviction (A) with a service characterization of under other than 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 (B and C).  

An under other than 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 two domestic violence incidents, to include physical abuse, in a three-month period.  At least one of these incidents led to a civil conviction for drunkenness and domestic violence.   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 implies that his discharge should be changed due to post-service accomplishments.  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 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 additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 02 until 28 April 2005, Article 1910-144 (previously 3630610), Separation by Reason of Misconduct - Civilian Conviction. 

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

C.  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