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Docket No. ND04-01135

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

ex-AZ3, USN
Docket No. ND04-01135

Applicant’s Request

The application for discharge review was received on 20040708.  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.

Decision

A documentary review was conducted in Washington, D.C. on 20041122.  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 OTHER THAN 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:

“Issues to be addressed are
(1) Specific Reason for Discharge
(2) No Civil Action was taken for alleged Offense
(3) Requested FOIA and no response this date

I feel my discharge should be upgraded to Honorable so that I May use my GI BILL to attend school for Chemical dependency counselor at Allen County College in Iola, Kansas.

I have completed the 28-day treatment In Cussing, Oklahoma that was unlike the curriculum and treatment given at the VA Hops in Dallas, Texas.  It was the best $10,000.00 out of pocket expense ever incurred.

Thank You for your Consideration

May GOD bless and be with you and your families and that he may look over those serving and those who have served.”

Documentation

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

Letter from Valley Hope Association, Cussing Valley Hope Residential Treatment Center, dated February 19, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive: USARNG (Kansas)		830305 - 870319	HON
                          USNR (DEP)		870320 - 870402	COG
Active:   USN 			870403 - 910117	HON
						910118 - 980505	HON

Period of Service Under Review:

Date of Enlistment:  980506		Date of Discharge:  010904

Length of Service (years, months, days):

	Active:    03  03  30
	Inactive:  None

Age at Entry:  32			Years Contracted:  4

Education Level:  12			AFQT:  46/63

Highest Rate:  AZ2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (2)	Behavior:  2.50 (2)		OTA:  3.05

Military Decorations:  Aviation Warfare Specialist, NAM(2), Army Reserve Component Achievement Medal

Unit/Campaign/Service Awards:  NDSM, SWAS, NATO, KLM, AFSM(2), AFEM, GCM(3), MUC(2), SSDR(4), Pistol Sharpshooter, Marksman Badge w/Rifle Bar, Army Service Ribbon, Kansas National Guard Emergency Duty Service Ribbon (2)

Days of Unauthorized Absence:  10

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

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

Chronological Listing of Significant Service Events:

980506:	Applicant reenlisted for a period of four years.

010501:	Applicant screened for alcohol abuse and recommended for Level II treatment.  Applicant completed Level II treatment through the Veteran’s Medical Center in Dallas, TX on 010703 [extracted from CO’s letter].

010706:	Applicant received a misdemeanor ticket for disorderly conduct, abusive language, from the Fort Worth Police Department.  Applicant admitted to cursing out an 8 year old boy.

010713:	Applicant to UA this date.  Applicant transferred from command earlier than authorized.

010715:	Applicant arrested by Osage County Sheriff’s Office, Kansas, for two counts of sexual battery, one on a minor.  Applicant allegedly rubbed the leg and fondled the breast of the minor victim.

010723:	Applicant surrendered from UA this date.  Applicant checked aboard NATTC Pensacola for temporary duty under instruction.

010726:	NJP for violation of UCMJ, Article 86: Unauthorized absence; violation of UCMJ Article 107 (3 specs):  False official statement; violation of UCMJ Article 134:  Adultery.
	Award:  Restriction and extra duty for 30 days, reduction to E-4.  No indication of appeal in the record.

010730:	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 and by reason of alcohol rehabilitation failure.

010730:  	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.

010822:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and by reason of alcohol rehabilitation failure.

010828:	Chief of Naval Air Training directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and by reason of alcohol rehabilitation failure.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010904 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).

Issues 1 and 2:  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 Applicant contends that his discharge was improper or inequitable because civil action was never taken against him for his alleged offenses and he does not know the specific reason for his discharge.  The record indicates the Applicant was processed for separation both by reason of misconduct due to commission of a serious offense and alcohol rehab failure.  The Applicant’s DD Form 214 further indicates that his ultimate separation was for misconduct due to commission of a serious offense.  The evidence indicates that the Applicant was awarded NJP for violations of the UCMJ, Article 86, unauthorized absence for less than 30 days, Article 107, false official statement, and Article 134, adultery.  To be discharged by reason of misconduct due to commission of a serious offense, a servicemember must have committed a violation of the UCMJ which, if tried by special or general court-martial could possibly result in the award of a punitive discharge.  There is no requirement that any of the charges against a servicemember be resolved at court-martial, NJP, or through civilian action.  The evidence required to support a finding that the member committed a serious offense is only a preponderance of the evidence and not the more onerous standard of beyond a reasonable doubt that is found at court-martial.  

In the Applicant’s case, the record indicates the Commanding Officer believed a preponderance of the evidence supported the conclusion the Applicant had committed at least two serious offenses, violations of Articles 107 and 134, by virtue of the imposition of NJP.  Furthermore, there is credible and substantial evidence to suggest the Applicant committed another serious offense by virtue of his alleged violation of Article 134, indecent acts or liberties with a child while in a UA status in Kansas.  Any one of these offenses supports a separation by reason of misconduct due to commission of a serious offense.  Relief denied.

Issue 3:  The Applicant complains that he has submitted a Freedom of Information Act (FOIA) request to an unspecified Federal agency and has yet to receive a response.  Unfortunately, the NDRB has no authority or jurisdiction over the granting or denial of FOIA requests.  Regulations limit the Board’s review to the discharges of Department of Navy servicemembers.

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, including educational 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.  

Outstanding post-service conduct, 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, can be considered.  In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships.  In reviewing the applicant’s post service, the Board was impressed with the efforts he has begun to make in attempting to recoup his reputation, which has been sullied by his misconduct in the Navy.  However, the Applicant has provided insufficient evidence of post-service accomplishments to warrant an upgrade on this basis.  Therefore, relief will not be granted at this time.

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 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 107, false official statement, 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.