Author: CAP
Last saved by: shirley.robertson
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Docket No. ND04-00534

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

ex-AA, USN
Docket No. ND04-00534

Applicant’s Request

The application for discharge review was received on 20040217.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance discharge review before a traveling panel closest to Washington, D.C.  The Applicant listed Private Representation as the representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing, also advised that the Naval Discharge Review Board (NDRB) does not travel, all hearing are held in the Washington National Capital Region.

Decision

A documentary review was conducted in Washington, D.C. on 20041222.  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)/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:

“ I, C_ A_, was discharged from the military service by captain’s mass for two separate instances that I feel I shouldn’t have been discharged.

I feel I was wrongly accused by my Commanding Officer.  He accused me of trying to steal tires from the navy exchange.  Here’s what actually happened.  I was at the tire store ready to pick up my car after they had finished putting new tires.  I went up to the counter to write a check to pay for them but they would not take it because I bounced a check there once before.  I completely understood, but I didn’t have another form of payment on me, so I left my checkbook with the cashier so she knew I was coming hack.  I left the store to get my ATM card so that I would be able to pay for the tires.  When I came hack they were closed.

The next morning I was at my command, just about to let my Petty Officer in charge know that I needed to go pay for the tires when a police officer showed up wanting to know why I hadn’t paid for the tires.  I told the police officer what happened and he escorted me to the bank so I could take out some money, approximately $160.  I then gave the officer the money to pay for them.

The other reason I was discharged was because I was speeding on the freeway to get my shipmate to personnel.  He was getting discharged from the navy that day and I was pressed for time.  I made it to personnel before they closed, dropped him off, and went back to my command.  When I got back everyone was upset with me for reasons unknown to me.  They had received a phone call from the person in charge of the government vehicles on the base telling my command that I was speeding on the freeway and I had cut him off.

These were the reasons I was deducted in rank put in restriction for a month and eventually discharged from the navy.

Although it was wrong for me to speed and cut off another car on the freeway, I feel being discharged under ‘general with honorable conditions’ and the misunderstanding with the tires were far too harsh of a punishment.  If I knew then what I know now 1 would of opted for a court martial.  I talked to a jag officer right after I was discharged and he was appalled.

My reason for writing this appeal is to get the GI hill so I may attend college in the fall.  I need to get my ‘general with honorable conditions’ bumped up to ‘honorable discharge.’  I feel I served the navy respectfully and was very upset to leave.”

Documentation

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

None.

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	960517 - 961028	COG
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  961029		Date of Discharge:  981009

Length of Service (years, months, days):

	Active:    01  11  11
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  11			AFQT:  51

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*	Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  NER

Days of Unauthorized Absence:  None

*No Marks made available for review.

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:

980904:	NJP held this date [Extracted from service record].

981009:	Applicant discharged general (under honorable conditions) by reason of misconduct due to the commission of a serious offense per MILPERSMAN 1910-142.  [Extracted from DD Form 214].

Complete discharge package unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19981009 with a general (under honorable conditions) for misconduct due to commission of a serious offense (A).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

Issue 1:  Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  

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.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the 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 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.  As of this time, the Applicant has not provided any 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 or any other evidence related to his discharge 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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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 “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

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.