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

FOR OFFICIAL USE ONLY

ex-EN2, USN
Docket No. ND06-00769

Applicant’s Request

The application for discharge review was received on 20060516.  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 20070308.  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 characterization of the discharge shall not change.  The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to commission of a serious offense.

The NDRB did note administrative error on the original DD Form 214.  Block 18, Remarks, should contain the following statement:  “CONTINUOUS HONORABLE ACTIVE DUTY FROM 920720 UNTIL 980602.”  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:

Impropriety – Command misconduct
Equity – Ex-wife filed false abuse complaint

Documentation

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

Applicant’s DD Form 214 (Member 4)
Disposition Notice regarding child abuse charges from A_ C_ R_, Assistant State Attorney, dtd June 17, 2004
Letter of Congratulation from C_ S. W_ for completion of Kids in Distress Program and dismissal of pending charges, dtd June 8, 2004
Letter from LT B_ J. S_, MC, USNR, regarding Applicant’s humanitarian reassignment, dtd February 2, 2002
Commanding Officer recommendation for humanitarian reassignment, dtd February 15, 2002
Motion for Order to change legal custody of child, dtd October 5, 2005 (2 pgs)
Change of Custody Report (3 pgs)
Court Order dtd October 7, 2005 (3 pgs)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19910921 - 19920719	COG
	Active:   USN	19920720 - 19980602	HON

Period of Service Under Review:

Date of Enlistment:  19980603		Date of Discharge:  20040615

Length of Service (years, months, days):

	Active:    06  00  13  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  23

Years Contracted:  4 (31-month extension)

Education Level:  12				AFQT:  46

Highest Rate:  EN2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.33 (6)		Behavior:  2.83 (6) 			OTA:  3.62

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal (2), Navy and Marine Corps Overseas Service (2), Good Conduct Award (2), Battle “E” Award, Sea Service Deployment Ribbon

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: 

980603:	Reenlisted this date for a term of 4 years

040214:	Retention Warning:  Advised of deficiency (First Physical Readiness Program Failure in a 4-year period), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

040615:	DD Form 214: Applicant discharged with a general under honorable conditions by reason of misconduct commission of a serious offense. 

Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040615 by reason of misconduct due to commission of a serious offense (A) 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 (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

The Applicant requests upgrade of the characterization of his discharge to honorable.  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.  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 retention warning and a civilian charge of child abuse.  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 alleges that his command convinced him (against the advice of his attorney) not to contest a civilian child abuse charge in order to have him availability for an upcoming deployment.  He states further that the command promised not to take adverse action against him for the misconduct.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support his contentions of command misconduct.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Relief denied.

The Applicant contends his disciplinary problems were the result a family situation involving his former spouse.  The NDRB recognizes that serving in the U.S. Navy is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharges.  In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  The NDRB found that the Applicant's service was equitably characterized.  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.  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.  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.

D.  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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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