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Docket No. ND04-01230

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

ex-MMFN, USN
Docket No. ND04-01230

Applicant’s Request

The application for discharge review was received on 20040726.  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.

Decision

A documentary discharge 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 feel that my discharge of general under honorable conditions should be changed to honorable discharge because I was processed out three weeks before my EAOS date of March 16, 1998 for financial indebtness.  During that time, I didn’t realize that I was in so debt until I got back from my six months deployment in the Mediterranean Sea.  My wife at that time must of collect an overwhelming amount of debt to where she couldn’t stay on top of the debts which caused me to be discharged, but I feel like my military performance should be worthy enough for me to be granted an honorable discharge”.

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)	910816 - 920316	COG
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  920317		Date of Discharge:  980226

Length of Service (years, months, days):

	Active:    05  11  10
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  61

Highest Rate:  MM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.40 (6)	Behavior:  3.46 (6)		OTA:  3.43

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, AFEM, SSDR(2), BATTLE“E”(3), AFSM, HSM, JMUA

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:

930622:	Retention Warning:  Advised of deficiency (Conduct discrediting the naval service, making a false pass.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
930622:	Retention Warning:  Advised of deficiency (Inability to effectively deal with stress and inability to effectively manage financial matter), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

930729:	NJP for violation of UCMJ, Article 113: Sleeping on watch.
	Award:  Forfeiture of $100.00 pay per month for 1 month, reduction to E-3 (suspended for 6 months), and page 13.  No indication of appeal in the record.

961005:	Retention Warning:  Advised of deficiency (Failure to pay just debts), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
971212:	NJP for violation of UCMJ, Article 134: Debt, Dishonorably Failing to Pay, violation of UCMJ Article 92: Failure to Obey Written Order, violation of UCMJ Article 134: Obtaining Services Under False Pretenses.
	Award:  Restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

980114:	General District Court, Traffic Division, Norfolk VA, Applicant charged 
suspended license.  Sentence imposed: $75.00 fine and court costs, 60 days in jail (suspended), 60 days suspension of operators license.

980224:	Applicant notified of intended recommendation for discharge general under honorable conditions by reason of misconduct due to a pattern of misconduct, commission of a serious offense and dishonorable failure to contribute adequate support to dependents as evidenced by CO’s NJP of 930729 for violation of the UCMJ, Article 113, Sleeping on Watch and CO’s NJP of 971008 for violation of the UCMJ, Article 134, Debt, Dishonorably Failing to Pay; Article 92, Failure to Obey Lawful Written Order and Article 134, Obtaining Services Under False Pretenses.  Violation of the UCMJ, Article 86, Unauthorized Absence from Unit, Organization or Place of Duty, for violation of UCMJ, Article 87, Missing Movement, and violation of the UCMJ, Article 92, Failure to Obey Lawful Order.

980224:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

980226:	Commanding Officer recommended discharge general under honorable conditions by reason of misconduct due to a pattern of misconduct, commission of a serious offense and dishonorable failure to contribute adequate support to dependents as evidenced by CO’s NJP of 930729 for violation of the UCMJ, Article 113, Sleeping on Watch and CO’s NJP of 971008 for violation of the UCMJ, Article 134, Debt, Dishonorably Failing to Pay; Article 92, Failure to Obey Lawful Written Order and Article 134, Obtaining Services Under False Pretenses.  980221, Violation of the UCMJ, Article 86, Unauthorized Absence from Unit, Organization or Place of Duty, for violation of UCMJ, Article 87,Missing Movement, and violation of the UCMJ, Article 92, Failure to Obey Lawful Order.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980226, with a 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).

The Applicant contends that he served the United States well and he is entitled to an upgrade.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  A General discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by 3 retention warnings and 2 nonjudicial punishment proceedings for violations of Articles 92, 113, and 134 of the UCMJ.  Further, the Applicant was charged with violations of Article 86, 87, and 92 that occurred 3 days prior to the start of the administrative discharge process. 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.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural 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.  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 II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

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

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.