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Docket No. ND03-00653

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

ex-EMFN, USN
Docket No. ND03-00653

Applicant’s Request

The application for discharge review was received on 20030304.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to “COG.”  The Applicant requests 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 20040205.  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 and the reason for discharge was discovered by the NDRB.  The Board’s vote was unanimous that the character and reason for discharge shall not change.  The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “My discharge was sudden, and in my opinion, unnecessary.  In 26 months of service, I had one disciplinary infraction.  I was discharged from the Navy, made to travel from South Carolina to my home of record, California, on less than adequate travel expenses, and forced to repay a bonus that I feel was earned.  Now, I am being denied education benefits that I paid into (MGIB) because of my discharge.  I think that enough time has passed and that I have paid more that the price for the offense that I committed while in the service.  I would like to move on with my life, and I should be allowed to use my veterans benefits.  I feel that my reason for discharge should be changed from misconduct to convenience of the government.  The reason for this is that to my knowledge, there was no attempt to rehabilitate me.  I feel that my character of service should pre-empt the placement of such mark on my record.  I also feel that my discharge should be upgraded to Honorable.  These changes to the nature of my discharge will allow me to utilize my veteran’s benefits, continue to go to school and make something out of myself for the better.  I humbly ask for your assistance to do so.”

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	951017 - 951211	COG
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  951212		Date of Discharge:  980218

Length of Service (years, months, days):

	Active:    02  02  17
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (12 months extension)

Education Level:  12			AFQT:  90

Highest Rate:  EM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.66 (3)	Behavior:  2.25 (4)		OTA:  2.71

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

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

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

Chronological Listing of Significant Service Events:

971210:	NJP for violation of UCMJ, Article 92: (3 specs), Spec 1: Failure to obey a lawful order, to wit: CO’s policy on fraternization and sexual harassment, DCM Article ½ -5 354.1 dated 970930 and Administrative Remarks NAVPERS 1070/613 (page 13) dated 970224; Spec 2: Failure to obey a lawful general order or regulation, to wit: Page IV-5 OPNAVINST 5343.1D dated 960621, Spec 3: Failure to obey written order, to wit: CO NPTC Orlando, to wit: Navy’s policy on alcohol abuse, Administrative Remarks NAVPERS 1070/613 (page 13) dated 970301 by wrongfully consuming alcoholic beverages.
	Award:  Oral admonition, forfeiture of $300.00 pay per month for 2 months, reduction to E-3.  No indication of appeal in the record.

971217:	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 by CO’s NJP 971210 for violation of UCMJ, Article 92 (3 specifications) one of which involved sexual harassment.

971218:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

980112:	Commanding Officer recommended discharge by reason of misconduct due to the commission of a serious offense

980202:	BUPERS directed the Applicant's discharge general under honorable conditions 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 19980218 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.  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 92 (Three Specifications).  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.

Issue 2.  The Veterans Administration determines eligibility for post-service benefits 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. 

The following is provided for the edification of the Applicant.  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 submitted sufficient documentation for the Board to consider.

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 15560C), Change 18, effective 
12 Dec 97 until 29 March 2000, Article 1910-142  [formerly 3630605]. SEPARATION 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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