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

ex-HA, USN
Docket No. ND05-00475

Applicant’s Request

The application for discharge review was received on 20050126.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing discharge review before the Board in the Washington, D.C., Metropolitan area and a record review.  The Applicant did not list any 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.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050601.  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:

1. “I feel my discharge was inequitable because it was based on one isolated incident in 3 ½ years of service with no other adverse action.  When I joined in 2000 I went in as a undesignated seaman for 2 yrs I worked hard to strike Hospital Corpsman.  I completed the BMR book, Hospital Corps book, and Seaman book.  Did 120 hours of OJT on my own time.  Had 3 letters of Recommendations from my fellow officers.  Went to a professional development board.  The CMC recommended that I go to Corpsman school.  I worked hard in school and graduated 2nd in my class with 92%.  I worked in the ICU at Portsmouth Naval Hospital and did have one isolated incident.  I went to get help for my depression has been going back to church.  I also volunteered with the Easter Egg Hunt at the command and was involved in the Junior Enlisted Association also collected Toys and donation for the Toys for Tots.  I realized I failed as a sailor and I don’t feel that one incident should have got me kicked out.  All I want is to be able to go back to school.  The reason I am submitting this application is because my dream is to go back to school and get my RN degree. I know it was my fault for getting kicked out.  But I did serve 3 ½ yrs honorably.  Please don’t exempt me because of this.  May 15, 2004 my house burnt down.  And all in all this were completely lost.  Trying to rebuild my home and with help from friends and family.  I am doing OK.  If you would reconsider and change my discharge to Honorable Discharged.  I could get the MGIB back and go back to school.  I haven’t been able to go back to school due to the house fire and it has just been really hard financially.  I would like to appear at any board that my determine the change in my discharge. I don’t feel that my MGIBILL should have been taking from me.  Please reconsider!!”

REMARKS: “I am also wanting to challenge the LPN/LVN Board in West Virginia and they will not let me take the Medical Board test with a general/under honorable conditions.  This is another reason I am asking for a reversal.”

Documentation

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

Applicant’s DD Form 214 (2)
Applicant’s Resume (2 pages)
Memorandum from West Virginia State Board of Examiners      
Release of Information request from West Virginia State Board of Examiners for Licensed Practical Nurses to Department of Veterans Affairs
GI Bill information (2 pages)
Applicant’s check stub for December 23, 2004 paydate
Letter of Recommendation dated March 20, 2004
Letter of Recommendation dated April 6, 2004
Certificate of Graduation from Department of Navy Bureau of Medicine and Surgery dated June 13, 2003
Letter of Recommendation dated September 22, 2002
Letter of Commendation for period ending February 2002
Letter of Recommendation dated September 19, 2002
Letter of Recommendation dated September 12, 2002
Fire Incident Report dated May 15, 2004 (3 pages)
Response Letter from West Virginia State Board of Examiners, undated

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	000120 - 001105	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  001106		Date of Discharge:  040429

Length of Service (years, months, days):

	Active:    03  05  24
	Inactive:  None

Age at Entry:  24			Years Contracted:  4 (26 months extension)

Education Level:  12			AFQT:  39

Highest Rate:  HN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.50 (4)		Behavior:  3.00 (4)		OTA:  3.17

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, NDSM, SSDR

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:

010322:	NJP for violation of UCMJ, Article 92: Failure to obey order or regulation; violation of UCMJ Article 134: Conduct prejudicial to good order and discipline.
	Award:  Forfeiture of $584.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

031120:	Retention Warning:  Advised of deficiency (Violation of UCMJ, Article 86, unauthorized absence, Article 92, Failure to obey order or regulation, Article 107, False official statements, uniform violations and unprofessional and immature conduct), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

040217:	NJP for violation of UCMJ, Article 134: Willfully and unlawfully alter by whiting out and writing false information on an official document.
	Award:  Forfeiture of $645.00 pay per month for 1 month, restriction for 45 days (suspended for 6 months), extra duty for 30 days, reduction to E-2.  No indication of appeal in the record.

040406:	Applicant notified of intended recommendation for discharge with the least favorable characterization of general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

040406:  	Applicant advised of her rights and having elected to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

040416:	Commander, Naval Medical Center, Portsmouth directed the Applicant’s general (under honorable conditions) discharge 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 20040429 with a general (under honorable conditions) character of service 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.  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 two nonjudicial punishment proceedings for violations of Articles 92 and 134 of the UCMJ.  The Applicant also committed violations of Articles 86, 102 and 107 which were not adjudicated. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy and falls far short of that required for an upgrade of her characterization of service.  Relief is not warranted.

The Applicant states her discharge was “based on one isolated incident in 3 ½ years of service with no other adverse action.”  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for her violation of Article 134.  The Applicant’s Article 134 violation, whiting out and altering an official document, is considered a serious offense and substantiates her discharge.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider her discharge proper and equitable.  Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Naval 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.  

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.  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.  In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 134, for altering, concealing, mutilating, obliterating or destroying a public record, if adjudged at a Special or General Court Martial

C.  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.

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

E.  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