Author: CAP
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Docket No. ND01-00708

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

 ex-HTFA, USN
Docket No. ND01-00708

Applicant’s Request

The application for discharge review, received 010424, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011127.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain:  GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT.  

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  Upon agreeing to be discharged I did not realize the difference between the two now that I have learned the difference I would appreciate my discharge being changed w/my GI benefit include or at least a refund of my initial investment.  Thank you,

Documentation

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

Letter from applicant
Copy of DD Form 214
Copy of commendation for 1 October to 22 November 1995
Copy of certificate dated 21 November 1995
Copies of letters of appreciation dated 3 October 1995 and 1 December 1996 with cover letters
Copy of citation for May 1996 to June 1996

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	930331 - 930919	COG

Period of Service Under Review:

Date of Enlistment:  930920		Date of Discharge:  970523

Length of Service (years, months, days):

	Active:    03  08  04
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  50

Highest Rate:  HTFN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.80 (1)	Behavior:  3.60 (1)		OTA:  3.80	4.0 eval
Performance:  3.00 (1)	Behavior:  1.00 (1)		OTA:  2.50	5.0 eval

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  5

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

GENERAL (UNDER HONORABLE CONDITIONS/MISCONDUCT, authority:  MILPERSMAN Article 3630600.
 
Chronological Listing of Significant Service Events:

960605:	NJP for violation of UCMJ, Article 86: Absent from appointed place of duty 1530-1745, 16Apr96, violation of UCMJ Article 134: Providing alcohol for consumption or use by a minor on 16Apr96.
	Award: Forfeiture of $100 per month for 2 months, extra duty for 15 days, oral reprimand.  No indication of appeal in the record.

970113:	Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to a pattern of minor disciplinary infractions as evidenced by a series of at least three (3) but not more that eight (8) minor violations of the UCMJ and by reason of misconduct due to commission of a serious offense as evidenced by your nonjudicial punishment of 5 June 1996, for violation of the UCMJ, Article 134, providing alcohol to a minor.

970113:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

970312:	NJP for violation of UCMJ, Article 123A: Making, drawing, or uttering check, draft, or order without sufficient funds.
	Award: Restriction for 60 days, reduction to HTFA.  Restriction deferred until 21Mar97, reduction suspended for 6 months.  No indication of appeal in the record.

970408:	Vacate suspended reduction to HTFA.

970617:	Commanding officer directed discharge general (under honorable conditions) by reason of misconduct due to pattern of minor disciplinary infractions and due to commission of a serious offense.  Commanding officer’s comments (verbatim):  HTFA (applicant) was administratively processed for discharge by reason of misconduct due to minor disciplinary infractions and due to commission of a serious offense.  Enclosures (4) and (5) indicated that HTFA (applicant) received nonjudicial punishment on two separate occasions. At his nonjudicial punishment of 12 March 1997 for failure to pay his just debts, his restriction was deferred in order to allow HTFA (applicant) to make restitution of monies owed to NEX Guam, an amount in excess of $3,000.00.  However, HTFA (applicant) failed to repay this amount and subsequently went on unauthorized absence for a period of five days.  HTFA (applicant's) blatant disregard to conform to the Navy's rules and regulations indicates poor potential for continued naval service.  Therefore, I separated HTFA (applicant) with a characterization of discharge as general under honorable conditions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 970523 general (under honorable conditions) for misconduct due to minor disciplinary infractions (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 applicant’s issue states:  “Upon agreeing to be discharged I did not realize the difference between the two now that I have learned the difference I would appreciate my discharge being changed w/my GI benefit include or at least a refund of my initial investment.  Thank you.”  The record shows the applicant was afforded his rights at the time of discharge and there is nothing in the record demonstrating that he did not have an understanding of the discharge.  The applicant’s realization that his discharge presents an impediment to receiving veteran’s benefits is not a basis to grant relief.  The Board noted the applicant was dual processed for a pattern of minor disciplinary infractions and commission of a serious offense.  The Board found an administrative error in the assignment of the reason for discharge as “ minor disciplinary infractions.”  The basis should have been “commission of a serious offense.”  Since the Board cannot downgrade the reason for separation, the discharge shall remain as issued.  Relief is not warranted.

The NDRB is authorized to consider post-service factors in the re characterization of a discharge.  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 the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB.  The applicant failed to provide documentary evidence to demonstrate his positive community service, employment history, and clean police record.  Relief is not warranted.

The applicant is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is recommended. 

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 
03 Oct 96 until 971212, Article 3630605, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 "afls10.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6710/A9453/A9217/A9221