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

FOR OFFICIAL USE ONLY

 ex-AOAN, USN
Docket No. ND05-00681

Applicant’s Request

The application for discharge review was received on 20050309.  The Applicant requested that his characterization of service received at the time of discharge be changed to honorable.  The Applicant requested a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060119.  After a thorough review of all available 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 4 to 1 that the characterization of the discharge shall not change.  The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to the commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and attached document/letter: 

“I respectfully request my discharge to be changed from general to honorable.  Over the last 5 years I have served as a correctional officer at a county jail and a I am currently and have been for 4 years a certified Law Enforcement officer in the State of South Carolina.  I am now seeking employment at a Federal Prison thus my discharge needs to be Honorable.  I have worked hard to prove myself and have served my community well.  Please review this request and take into consideration my desire to better myself and my family.  Thank you in this matter.”

Documentation

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

Statement from Applicant, dtd March 30, 2005 
Applicant’s DD Form 214
Memorandum from Senior Medical Officer, dtd March 28, 1996
Enlisted Performance Evaluation Report, period of 94 Jul 08 – 95 Jan 31 (2pages)
Enlisted Performance Evaluation Report, period of 94 Apr 01 – 94 Jul 07 (2pages)
Enlisted Performance Evaluation Report, period of 93 Feb 01 – 94 Jan 31 (2pages)
Enlisted Performance Evaluation Report, period of 92 Oct 03 – 93 Jan 31 (2pages)
Letter of Commendation from Commanding Officer Attack Squadron Thirty Six
Basic Jail Training II, Certificate of Completion from South Carolina Department of Public Safety, Criminal Justice Academy Division, dtd December 4-22, 2000
Basic Law Enforcement, Certificate of Completion from South Carolina Department of Public Safety Criminal Justice Academy Division, dtd May 21, 20001 - July 27, 2001
Sumter, South Carolina, Bulletin #150, dtd June 27, 2003
Incident Report submitted by Applicant, dtd June 24, 2003
Equitation Crowd Control and Formations Patrol Techniques, Certificate of Training, dtd October 24, 2003
Basic Certification from Carolina Mounted Patrol Association, dtd October 24, 2003
Advanced Certification from Carolina Mounted Patrol Association, dtd October 24, 2003
Advanced DUI Detection-Field, Certificate of Completion from South Carolina Department of Public Safety Criminal Justice Academy Division, dtd September 23-25, 2003
RADAR Speed Measuring Devices, Certificate of Completion from South Carolina Department of Public Safety Criminal Justice Academy Division, dtd January 8-9, 2003
Breath Alcohol Test Permit from State of South Carolina Department of Public Safety State Law Enforcement Division, dtd April 11, 2002
Certificate of Promotion to Corporal from Sumter Police Department, dtd May 21, 2003   
Certificate of Promotion to Master Patrolman from Sumter Police Department, dtd November 21, 2002 
Defensive Driving Course Certificate of Completion from National Safety Council, dtd November 23, 2002    

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19920514 – 19920603		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19920604		Date of Discharge:  19960709

Length of Service (years, months, days):

	Active:    04 01 06  
	Inactive:  None

Time Lost During This Period (days):  

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  22

Years Contracted:  4 (12 month extension)

Education Level:  12				AFQT:  36

Highest Rate:  AOAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.8 (3) 		Behavior:  3.6 (3) 		OTA:  3.80 (3)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, 1st Sea Service Deployment Ribbon, Southwest Asia Service Medal, Meritorious Unit Commendation, Battle “E” Ribbon.

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events: 

940308:	Applicant extended his enlistment, 12 months.

940630:	Applicant dropped from HM “A” School due to “lack of comprehension/retention of subject matter”. 

940922:	NJP for violation of the UCMJ, Article 107 (false official statement).
Award:  Forfeiture of $150 per month for 2 months (suspended for 1 month), reduction to E-2 (suspended for 3 months), and restriction and extra duty for 30 days.  No indication of appeal in the record.

940928:	Retention Warning:  Advised of deficiency (violation of UCMJ Article 107), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

941022:	Applicant failed PRT due to being out of standards (weight).

960328:	Memorandum to Legal Officer from Senior Medical Officer.  Recommend administrative separation based upon a pre-existing developmental disorder requiring mediation.  (Submitted by Applicant.)

960409:	Retention Warning:  Advised of deficiency (attention deficit hyperactivity disorder), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

960430:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of erroneous enlistment and misconduct due to commission of a serious offense.

960430:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

960504:	Commanding Officer, USS ENTERPRISE (CVN-65) recommended to Chief of Naval Personnel the discharge of AOAN S_ (Applicant) with a general (under honorable conditions) by reason of erroneous enlistment and commission of a serious offense.  Commanding Officer’s comments:  “On 15 February 1996, he was diagnosed with attention deficit hyperactivity disorder which existed prior to entry into the naval service.  Although originally characterized as a personality disorder, it precludes military service because it requires constant medication and is better characterized as a disability.  During consultation with Naval Medical Center Portsmouth, the Enterprise Senior Medial Officer was informed that this case does not meet the criteria for a medial discharge board.  
In September 1994, AOAN S_ (Applicant) received nonjudicial punishment for a false official statement to obtain advance pay in conjunction with a PCS transfer.  Based on the lapse in time and his otherwise honorable service, I recommend that AOAN S_ (Applicant) be separated from the naval service by reason of misconduct with a General discharge.”

960701:	BUPERS directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct - commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960709 by reason of misconduct due to the commission of a serious offense (A and B) with a service characterization of general (under honorable conditions).  After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  

To be legally sufficient, a finding of misconduct due to the commission of a serious offense requires only a showing (by a preponderance of the evidence) that misconduct, which would warrant a punitive discharge if tried by special or general court-martial, has occurred.  When the service of a member of the U.S. Navy has met the standard of acceptable conduct and performance it is appropriate to characterize that service as honorable.  A general (under honorable conditions) discharge is warranted when significant negative aspects of a member's conduct or performance outweigh the positive aspects of the member's military record.  The Applicant’s service was flawed by nonjudicial punishment (NJP) for a violation of UCMJ, Article 107 (false official statement).  Additionally, two retention warnings were administered.  Reference (A) defines a violation of UCMJ, Article 107 (false official statement) as the commission of a serious offense, the misconduct for which the Applicant was discharged.  Applicable regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment.  Separations under these conditions generally result in a less than honorable characterization of service.  Relief denied.

The Applicant requested that his discharge be upgraded in order to qualify for federal employment.  The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization 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 purpose of enhancing medical, housing, employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  This issue is without merit.  Relief is not warranted.

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 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.  The Applicant listed his employment as a supervisor and as safety manager as evidence of post service performance.  He also listed his volunteer work as a firefighter, assistant cub master, and assistant little league coach as further evidence of his post service accomplishments.  However, the Applicant did not provide documentation in support of these items.  He did submit thirteen documents verifying his employment, accomplishments and training received as a member of the Sumter Police Department.  After careful consideration, the Board concluded that the Applicant’s post-service achievements have been insufficient to mitigate his misconduct while in the Naval service.  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 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ Article 107 (false official statement).

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