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Docket No. ND04-00869

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

ex-MSSR, USN
Docket No. ND04-00869

Applicant’s Request

The application for discharge review was received on 20040505.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation by the Disabled American Veterans.

Decision

A documentary review was conducted in Washington, D.C. on 20041008.  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 received by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/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.  “I am asking for help.  I have been diagnoised with a Brain Tumor at which it is not operative.  It is on my Brain Stem.  I need very much VA assistance.  I was discharged with an OTH.  I was young & stupid at the time.  I really need some help with my medical and treatments.  I have 3 children and need this in a bad way.  Please help me.  Thanks.”

Issues submitted by Applicant’s counsel/representative (DISABLED AMERICAN VETERANS):

1.  “Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Other Than Honorable (OTH) discharge to that of Honorable Conditions.

The FSM served on active service from August 8, 1991 to July 12, 1993 at which time he was discharged due to Misconduct-Commission of a Serious Offense.

The FSM explains on his application that he requests equitable relief due to terminal illness (brain stem tumor).  Which due to his current discharge he is unable to get treatment at VA Medical Centers and cannot afford the treatment through private doctors and to obtain or maintain such treat without assistance would cause such financial hardship that it would affect the lives of his three children.

The FSM asks that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

In the course of the review of this application for discharge upgrade, we have determined that a change is warranted based on consideration of the applicant’s military record and other evidence viewed, even though the discharge was determine to be equitable and proper at the time of issuance.  This to include all areas of consideration as outlined in 32 CFR 724.903.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the Applicant.”

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		910416 - 910807	Rel to Acdu
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  910808		Date of Discharge:  930712

Length of Service (years, months, days):

	Active:    01  03  04
	Inactive:  00  03  22

Age at Entry:  18			Years Contracted:  8

Education Level:  11			AFQT:  34

Highest Rate:  MSSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.80 (1)	Behavior:  3.00 (1)		OTA:  2.80

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SWAS w/Bronze Star

Days of Unauthorized Absence:  64

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

910808:	Applicant commences active duty time in the Seaman Apprentice program.

930218:	Applicant to UA on this date

930223:	Applicant missed movement of USS AMERICA on this date.

930319:	Applicant declared deserter on this date.

930413:	Applicant missed movement of USS AMERICA on this date.

930423:	Applicant surrendered from UA on this date.

930517:	Summary Court-Martial:
	Charge I: violation of the UCMJ, Article 86:
	Specification: In that Applicant was UA from on or about 930218 until his surrender on 930423.
	Finding: To Charge I and the sole specification thereunder, Guilty.
	Charge II: violation of the UCMJ, Article 87:
	Specification: In that Applicant missed ship’s movement on or about 930223.
	Finding: To Charge II and the sole specification thereunder, Guilty.
	Sentence: Reduction to E-1, Forfeiture of $542.00 pay per month for 1 month, 30 days confinement.
	CA Action 930518: Sentence approved and ordered executed as adjudged.

930611:	Applicant released from confinement on this date.  Awarded 5 days credit for good behavior.

930626:	Applicant notified of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by the summary court-martial under the UCMJ in the current enlistment.

930627:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.  Applicant did not object to the separation.

930630:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

930712:	BUPERS directed the Applicant's discharge under other than 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 19930712 under other than honorable conditions for misconduct due to commission of a serious offense (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issue 1:  Normally, to permit relief, an impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  The Applicant asks for an upgrade to his discharge so that he may be eligible to receive Veteran’s Administration benefits in the treatment of his inoperable brain tumor.  While the Board sympathizes with the Applicant’s plight, it must be noted that 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.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

Likewise, 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, medical records or other evidence of illness, 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 5, effective 
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 86, for unauthorized absence for a period in excess of 30 days if adjudged at a Special or General Court-Martial.

C.  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.  

D.  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.

E.  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.