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

FOR OFFICIAL USE ONLY

 ex-MA2, USN
Docket No. ND06-00909

Applicant’s Request

The application for discharge review was received on 20060627.  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 20070419.  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) by reason of misconduct due to commission of a serious offense.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

Equity:  “one mistake” did not warrant discharge

Documentation

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

Applicant’s DD Form 214 (Member 4)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19951013 - 19960611	COG
	Active:   USN	19960612 - 20010109	HON

Period of Service Under Review:

Date of Enlistment:  20010110		Date of Discharge:  20050720

Length of Service (years, months, days):

	Active:    04  06  11
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  23

Years Contracted:  4 (12-month extension)

Education Level:  12				AFQT:  38

Highest Rate:  MA1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.7 (7)			 Behavior:  3.4 (7)		OTA:  3.47

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Armed Forces Expeditionary Medal, Navy Good Conduct Medal (2nd), Global War on Terrorism Service Medal, Navy Pistol Marksmanship Ribbon (Sharpshooter)

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

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

Chronological Listing of Significant Service Events: 

010110:	Reenlisted this date for a term of 4 years with a 12-month extension.

050624:	NJP for violation of UCMJ, Article 92: Failure to obey order or regulation - inappropriate sexual relationship with a subordinate.
Violation of UCMJ, Article 134: Self-injury without intent to avoid service - by cutting his arm with razor blade.
	Award:  Forfeiture of $1,164.00 per month for 2 months (suspended for 6 months), restriction for 30 days, reduction to E-5.  No indication of appeal in the record.

050706:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct due to commission of a serious offense.

050706:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

050712:	Commanding Officer, Navy Region Southwest Transient Personnel Unit, authorized the Applicant’s discharge with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050720 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).  The Board presumed regularity in the conduct of governmental affairs (E).

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 nonjudicial punishment proceedings for violations of Articles 92 and 134 of the UCMJ.  The record indicates that the Applicant’s misconduct involved an inappropriate sexual relationship with a subordinate.  Such conduct is extremely prejudicial to good order and discipline within the Naval service.  The negative impact of the Applicant’s misconduct, occurring onboard an extremely small and isolated outpost, was further exacerbated by his rank and billet.  The NDRB advises the Applicant that certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline.  Violations of Article 92 and 134 are considered serious offenses for which a punitive discharge is authorized if adjudged at a special or general court-martial.   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 short of that required for an upgrade of his characterization of service.  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.  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), Change 11, effective 
26 April 2005 until Present, Article 1910-142, 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, Articles 92 (Failure to obey order or regulation) and 134 (Self-injury without intent to avoid service).

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 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