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Docket No. ND03-00564

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

 ex-AKAR, USNR(TAR)
Docket No. ND03-00564

Applicant’s Request

The application for discharge review was received on 20030212.  The Applicant requests the 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 list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation from the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040204.  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 HONORABLE CONDITIONS (GENERAL)/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “My discharge was inequitable because it was based on one isolated incident in 11 months of service with no other adverse action.  I was young and was influenced by an older woman lover to ask to be discharged from the military.  I really enjoyed the military.  I was a great worker at my duty station in Belle Chase, LA.  I made a bad decision and I need an upgrade on my discharge because I am a single parent of two children.  I am presently on welfare and I am seeking to enroll in college to get my Associated Degree in Social Work so I can provide my two kids and give them a better life.  I need some educational skills to get a good job.  Please give me a upgrade on my discharge so I can use my GI Bill Benefits to pay for my college tuition August 2003

Thank you

M_ T_ T_ (Applicant)”

Additional issues submitted by Applicant’s counsel/representative (American Legion):

2.  “(Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of the application.”

Documentation

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

Record of birth
Certificate of live birth, dated October 31, 2000

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	880725 - 880811	ELS
	Active:   None

Period of Service Under Review:

Date of Enlistment:  890215		Date of Discharge:  900628

Length of Service (years, months, days):

	Active:    00  11  16
	Inactive:  00  04  27

Age at Entry:  19			Years Contracted:  8

Education Level:  12			AFQT:  43/53

Highest Rate:  AKAR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.80 (1)	Behavior:  2.80 (1)		OTA:  2.80

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  101

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

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

890713:	Applicant ordered to active duty.

890719:	Applicant briefed on Navy's policy of drug and alcohol abuse.

890724:	Drug and Alcohol Abuse Report: Marijuana abuse, less than monthly.  Service directed urinalysis 890713.  DAPA and physician found Applicant not dependent and recommended Level I treatment.  Commanding Officer recommended retention and Level I treatment.  Comments: Potential for future naval service is good.  Attend Level I treatment following completion of boot camp.  Recruit accession.

890804:	Applicant identified, through urinalysis testing, to be a drug abuser.  Applicant placed on a drug urinalysis surveillance regimen program and tested on a regular basis during the remainder of assignment in accession training pipeline.

900524:	Clinical Psychologist Evaluation: A: Adjustment disorder with depressed mood.  II: No dt (Prominent dependent/immature traits).

900531:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 900113 to 900424 (101 days/surrendered).
	Award: Forfeiture of $100 per month for 2 months, restriction and extra duty for 45 days.  Forfeiture suspended for 6 months.  No indication of appeal in the record.

900605:	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 evidenced be your unauthorized absence in excess of 30 days, and by reason a personality disorder as diagnosed by a clinical psychologist.

900605:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

900614:	Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to the commission of a serious offense and due to a personality disorder.

900622:	CNMPC directed the Applicant's discharge under honorable conditions (general) by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19900628 under honorable conditions (general) 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.  Though the civilian world treats some offenses with leniency because they are a first time incident on an otherwise clear record, the military does not view offenses that affect good order and discipline as minor infractions.  The Applicant’s service record is marred by an award of Non-Judicial Punishment (NJP) for violation of UCMJ article 86: Unauthorized absence from 900113 to 900424 (101 days/surrendered).  Relief is therefore denied.

The Veterans Administration determines eligibility for post-service benefits, i.e., VA benefits, educational pursuits, and especially civilian employment, not the Navy Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. 

Issue 2.  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, however, 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, and certification of non-involvement with civil authorities.  At this time the Applicant has not provided sufficient documentation for the Board to consider.  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 at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A), Change 8, effective 
21 Aug 89 until 14 Aug 91, 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 "afls14.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.
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