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Docket No. ND01-01169

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

 ex-SA, USN
Docket No. ND01-01169

Applicant’s Request

The application for discharge review, received 010917, 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 designate representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020419.  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, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  Enclosed is Awards and Accomplishment that I have did since out of the Navy.  Also my resume is enclosed.  A Letterhead of my current job is enclosed.  Everyone addresses me as B----- because B---- is my married name.   I'm hoping that this will help my discharge be changed.

Documentation

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

Offer of Employment by Bethesda Home for Boys dtd June 30, 2001
Course Completion Certificate (Model Approach to partnerships in Parenting (MAPP)) dtd Nov 9, 2000
Certificate of Appreciation, Family Child Care Provider, dtd May 11, 2001
Certificate of Appreciation, Family Child Care Program, dtd Dec 9, 2000
Applicant's Resume
Copy of DD Form 214
Newspaper Article concerning application (3 pages)
Course Completion Certificate (Family Teaching Model Effect Skills Training), dtd Aug 6 - 17, 2007
Character Reference ltr from D_ K_, Office Assistant, Central Texas College, dtd June 12, 2001
Commendation Letter, Dept of Army, Family Child Care Direction, dtd June 12, 2001

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	940714 - 940826	COG

Period of Service Under Review:

Date of Enlistment:  940827		Date of Discharge:  951031

Length of Service (years, months, days):

	Active:    01  02  05
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  31

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.6 (1)	Behavior:  2.0 (1)		OTA:  2.8

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM 

Days of Unauthorized Absence:  19

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

950302:	BUPERS advised applicant's command of arrest history prior to entering the Navy that applicant failed to claim and directed the command to process applicant for fraudulent enlistment or recommend retention requesting a waiver.  Unclaimed arrests were (1) Assault and battery - 16 Mar 94, (2) disturbing school activities - 22 Mar 94 and (3) Deadly weapons on school property - 28 Apr 94.

950301:	Applicant advised by the Morale, Welfare and Recreation (MWR) of unauthorized use of long distance phone lines and that applicant must pay for the unauthorized calls, or MWR would be required to turn over the bills to the military for action.

950413:	NJP for violation of UCMJ, Article 92:  fail to obey lawful order; violation of UCMJ Article 134 (2 specs): intend to defraud.
	Award:  Forfeiture of $150 per month for 2 months, restriction and extra duty for 30 days.  No indication of appeal in the record.

950421:	Psychiatry Clinic, Naval Medical Center, Portsmouth, VA: 
Diagnosis:  AXIS I:  Occupational Problem, AXIS II - Borderline Trait.
	Psychiatrically fit for full duty, recommend stress management, financial education & employment assistance through Navy Family Service.

950425:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidence by all punishments under the UCMJ in your current enlistment; and by reason of defective enlistments and inductions due to fraudulent entry into Naval service through any knowingly false representation or deliberate concealment in regard to any of the qualifications or disqualifications prescribed by law, regulation, or others for the respective enlistment, induction or period of service.

950511:	Applicant advised of her rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

950705:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed a serious offense and did have a defective enlistment and induction due to fraudulent entry into the Naval service and by a vote of 2 to 1 recommended applicant's retention in the naval service.  

950705:	The dissenting member statement:  "Due to the initial fraudulent DD Form 398-2, and at least two other chances to rectify the error which she did not, I believe she cannot be depended on to do the right thing.  Her history is to do what she thinks she can get away with - not what she ought to do.  The phone incidents, to me, are theft - plain and simple.  Once again she only rectifies things once she is caught." 

950720:	Commanding officer recommended discharge with a General (under honorable conditions) by reason of misconduct, disagreeing with the Administrative Board's recommendation for retention.  Commanding officer’s comments (verbatim):  "SR (Applicant) was found guilty at mast for illegally using the government telephone system and defrauding the barracks' telephone system, Kinetic communications, Inc. and AT&T, for approximately 304 unauthorized calls of a value of $1176.00.  Prior to this mast, I received notice from Chief of Naval Personnel to process SR (Applicant) for fraudulent enlistment for failing to inform her recruiters of her pre-service arrest record.  The administrative board found that SR (Applicant) had committed misconduct and did fraudulently enlist into the Naval Service.  However, the Board members, by a 2 to 1 vote, recommended to retain SR (Applicant). 

	"SR (Applicant) lied about her pre-service civil convictions.  These offenses are serious enough to warrant a waiver for her to remain in the Naval service.  Her performance in 7 months of duty at my command has been less than average.  At the board, she openly admits to the wrongful use of government telephone system.  Therefore, I can not concur with the administrative board's recommendation of retention.  I recommend that SR (Applicant) be separated with a general under honorable conditions."

950729:	Unauthorized absence from Naval Air Base, Little Creek, VA at 0730.

950817:	Surrendered on board Naval Air Base, Little Creek, VA at 0715 (19 days).

950824:	NJP for violation of UCMJ, Article 86:  unauthorized absence (19 days).
	Award:  Correctional Custody for 30 days.  No indication of appeal in the record.

950824:	Retention Warning:  Advised of deficiency (NJP of 13 Apr 95 and 24 Aug 95.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

950829:	Absence not excused, charged 19 days lost time.

950915:	BUPERS recommended to the Secretary of the Navy the applicant's discharge be approved for misconduct due to the commission of a serious offense with a characterization of General (Under Honorable Conditions).

950928:	ASN(M&RA) approved applicant's discharge, as recommended.

950929:	BUPERS directed the discharge of applicant with a General (Under Honorable Conditions), by reason of misconduct due to commission of serious offense.

951025:	Branch Medical Clinic, NAVPHIBASE Little Creek, VA request extension of applicant's service pending lab results and medical treatment.

951031:	BUPERS denied request for retention for further medical treatment, unless member in immediate danger of death if not treated, is not ambulatory, or if injuries were sustained in line of duty.  Advised command to note physical defect on separation exam and proceed with discharge by reason of misconduct.  

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 951031 with a general (under honorable conditions) for misconduct due to commission of a serious offense (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).

Issue 1.  The applicant’s discharge characterization accurately reflects her service to her country.  The discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of her not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to her discharge.  She is reminded that she remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of her discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, 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:  A6730/A9221/A9217/