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Docket No. ND05-00216

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

 ex-OSSN, USN
Docket No. ND05-00216

Applicant’s Request

The application for discharge review was received on 20041119.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance before the Board in Washington, D.C.  The Applicant was advised that her case would first receive a documentary record review.  The Applicant listed the Veterans of Foreign Wars as her representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050322.  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 HONORABLE CONDITIONS (GENERAL)/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 inequitable because it was based on largely, one incident that took place involving a fairly small period of time out of 3 years, 6 months, and 18 days of service.  Additionally, reading the Recommendation Of Administrative Separation does not reflect what actually occurred but takes information out of context and appears much worse than it was (not an intent to diminish seriousness of offense) and resulted from the opinion of T.K B_ based on her interpretation of information and facts.  I did co-operate at every opportunity while dealing with the investigation and during mast.  While I was referred to a JAGC, he nor I, had an opportunity to plead my case during an Administrative Board which we were expecting.

I have attached a copy of my DD214, original VA Forms 21-4138 Statements in Support of my claim and a current employer statement for your review.  I request that my discharge be upgraded from General Under Honorable Conditions to Honorable based on the above.”

Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS):

2.  “Propriety and Equity Issue(s): The applicant’s discharge is inequitable in light of the circumstances surrounding her relationship with L_ T. W_, who coerced her into committing acts in violation of the UCMJ.

Statement:  In accordance with 32 CFR § 724, and SECNAVINST 5420.174D, the Veterans of Foreign Wars submits to the Naval Discharge Review Board (NDRB) the above issue and following statement in supplement to the Applicant’s petition.

The applicant feels that her discharge is too harsh and inequitable in the light of her honorable service and the peculiar circumstances surrounding her actions and the violations of the UCMJ of which she was found guilty by reason of NJP.  The violations of Article 92 and Article 134 were a direct result of the inordinate influence L_ T. W_ held over the applicant’s actions. 

The Veterans of Foreign Wars’ express purpose in providing this statement and any other submittals or evidence filed is to assist this applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 USC § 1553, and set forth in 32 CFR § 724 and SECNAVINST 5420.174D.This case is now respectfully submitted for deliberation and disposition.”
_______________________________________________________________________
Documentation

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

        Applicant’s DD Form 214
VA Form 21-22 dated October 29, 2004
Employment reference letter, undated
VA Form 21-4138 dated October 29, 2004 (3 pp.)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	990825 - 991018	COG
	Active:    USA			981229 – 990331	ELS

Period of Service Under Review:

Date of Enlistment:  991019		Date of Discharge:  030506

Length of Service (years, months, days):

	Active:    03  06  18
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  44/45

Highest Rate:  OSSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)		Behavior:  1.00 (1)		OTA:  2.67

Military Decorations:  None

Unit/Campaign/Service Awards:  BER (2)

Days of Unauthorized Absence:  None

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

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

Chronological Listing of Significant Service Events:

030204:	NJP for violation of UCMJ, Article 92 (2 Specs).  Spec. 1: Wrongfully carried and concealed a firearm on divers occasions on board Naval Station Norfolk and the USS BATAAN (LHD 5). Spec 2: Failed to report an offense under the UCMJ, larceny of a motor vehicle by FA W_. Violation of UCMJ, Article 134: Concealed a firearm on board ship used by FA W_ to damage a POV, and failed to report the offense to military or civilian authorities.
	Award:  Restriction and extra duty for 30 days (restriction suspended for 6 months, extra duty suspended for 30 days), reduction to next inferior paygrade.  No indication of appeal in the record.

030225:	Applicant notified of intended recommendation for discharge under  honorable conditions (general) by reason of misconduct due to the commission of a serious offense.

030225:  	Applicant advised of her rights and having consulted with counsel certified under UCMJ Article 27B, elected to submit a statement and obtain copies of the documents used to support the basis for the separation.

030328:	Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments: Applicant admitted to several instances of criminal conduct, including purchasing a firearm for a known felon, hiding the firearm on her ship after it was used in the commission of a felony, and repeatedly carrying the firearm on board ships.  She also admitted to failing to report serious misconduct committed by another sailor that included the murder of two other people and injury to another sailor.

030407:	Commander, Navy Region, Mid-Atlantic directed the Applicant's discharge under honorable conditions (general) 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 20030506 under honorable conditions (general) 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).

Issues 1 and 2.  A characterization of service of under honorable conditions (general) 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 award of nonjudicial punishment (NJP) for violating lawful regulations concerning the concealment and carrying of firearms aboard military installations and ships and failing to report misconduct by another sailor.  Each of the Applicant’s offenses with which she was charged is considered a serious offense under the UCMJ.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  Because the Applicant was processed for discharge under honorable conditions (general), the U.S. Navy was not required by regulations to offer the Applicant an administrative separation board.  The evidence of record does not demonstrate that the Applicant was not responsible for her conduct or that she should not be held accountable for her actions.  An upgrade to honorable is inappropriate.  Relief denied.

The Veterans Administration determines eligibility for post-service benefits, not the NDRB.  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 Applicant’s discharge characterization accurately reflects her service to her country.  Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question.  No such inequity or impropriety is evident during the Applicant’s enlistment.  Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, to enhance employment opportunities, or for good conduct in civilian life, subsequent to leaving the service.  Relief not warranted.

The Applicant is reminded that she remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of her discharge.  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), re-issued October 2002, effective 22 Aug 02 until Present, 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.