Author: CAP
Last saved by: joyce.meeks
Company: NCPB

Docket No. ND05-00931

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

FOR OFFICIAL USE ONLY

 ex-MSSN, USN
Docket No. ND05-00931

Applicant’s Request

The application for discharge review was received on 20050505.  The Applicant requests his characterization of service received at the time of discharge changed to honorable.  The Applicant requests 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 20050908.  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 unanimous that the characterization of discharge and the reason for discharge shall not change.  The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application: 

“I want a change in upgrade so I can use my G. I. Bill for school that I have enrolled in.  So I can better myself and family way of life.  My discharge was inequitable because it was based on one isolated incident.  I was sent to Quantico Brigg Because I went U.A. From Duty when my 14 year old Daughter was raped in Florida. I served 24 days in Quantico Brigg.  My command thought the punishment was to light so they decide to separate/me from the Navy.  I received the Discharge of General/under Honorable conditions.  But I need an Honorable to receive my G.I. Bill.  I feel I have been punished enough and I need this change so I can improve my Life and Family’s well Being.  Thanks”

Documentation

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

Applicant’s partial DD Form 214 (Member 1)
Ltr from The Chubb Institute, dtd April 18, 2005
Enrollment agreement, dtd April 21, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19960820 - 19950827	COG
	Active:   USN 	19960828 - 20000223	HON

Period of Service Under Review:

Date of Enlistment:  20000224		Date of Discharge:  20020906

Length of Service (years, months, days):

	Active:    02 06 13  (Does not exclude lost time.)	(Total service:  05 05 06)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  191 days
	Confinement:		  23 days

Age at Entry:  26

Years Contracted:  3 (4 month extension)

Education Level:  12				AFQT:  32

Highest Rate:  MS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  5.0 (2)		Behavior:  4.0 (2)		OTA:  4.36 (2)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Sea Service Deployment Ribbon (2), Armed Forces Expeditionary Medal, Navy “E” Ribbon, Pistol Marksmanship Medal, Navy and Marine Corps Achievement Medal, Flag Letter of Commendation, National Defense Service Medal

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

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

Chronological Listing of Significant Service Events: 

000224:	Reenlisted this date for a term of 3 years.

010422:	Applicant to unauthorized absence at 0001 on 010422.

010522:	Report of Declaration of Deserter.  Applicant declared a deserter on 010522 having been an unauthorized absentee since 0001, 010422 from National Naval Medical Center.

011029:	Applicant from unauthorized absence at 1130 on 011029 (191 days).  EAOS changed to 030902.

020312:	Special Court Martial
	Charge:  violation of the UCMJ, Article 86.
	Specification:  In that Mess Management Specialist Third Class V_ L. D_ (Applicant), National Naval Medical Center, Bethesda, Maryland, on active duty, did, on or about 22 April 2001, without authority, absent himself from his organization at which he was required to be, to wit: Local Training Authority Hampton Roads, located at Norfolk, Virginia, and did remain so absent until at or about 1130, 29 October 2001.
	Findings:  To charge and specification thereunder, guilty.
	Sentence:  Confinement for 30 days, reduction to E-3.
		
020312:	Applicant to confinement.

020405:	Applicant released from confinement.

020730:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct due to commission of a serious offense.

020807:	Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

020826:	Commanding Officer, National Naval Medical Center, directed discharge with a general (under honorable conditions) by reason of misconduct - commission of a serious offense.

021011:	Commanding Officer, National Naval Medical Center, forwarded the administrative discharge package to CNPC.  Commanding Officer’s comments:  “On 22 April 2001, MSSN D_ (Applicant) failed to report to his intermediate duty station Hampton Roads, Norfolk, Virginia.  After 30 days, my predecessor in command declared him a deserter as the National Naval Medical Center was to be his permanent duty station.  On 29 October 2001, MSSN D_ (Applicant) returned to military control at the National Navy Medical Center.  His violation of the UCMJ, Article 86, was referred to trial by special court-martial.  On 12 March 2002, MSSN D_ (Applicant) was found guilty of violation of the UCMJ, Article 86.  At sentencing he was reduced in rate to E-3 and confined for 30 days.  After completion of his confinement, my predecessor in command notified him he was being administratively separated pursuant to MILPERSMAN 1910-142 due to misconduct - commission of a serious offense.”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020906 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization 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).  

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  After a thorough review of Applicant’s case the Board discovered no impropriety or inequity.  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 of duty outweigh the positive aspects of the member's military record.  Despite the servicemember’s record of service, certain serious offenses warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s service was marred by special court martial for violation of UCMJ Article 86 (unauthorized absence, 191 days) resulting in the Applicant’s admission of guilt.  The violation of Article 86 in excess of 30 days constitutes the commission of a serious offense, for which the Applicant was discharged.  The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls short of that required for an upgrade in the characterization of service.  Relief is not warranted.

The Applicant contends that his discharge was inequitable as he considers the discharge as further punishment following his special court martial.  The Applicant’s issue is without merit.  Administrative discharge processing is a separate and distinct process from punitive proceedings such as NJP and court-martial.  Furthermore, administrative discharge processing is administrative in nature and not considered a form of punishment.  Based upon the evidence of record, the NDRB found no improprieties or inequities in the Applicant’s discharge processing.  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.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  The Applicant’s issue is without merit. 

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 has not provided post-service documentation for the Board to consider.  

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.  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 86 (unauthorized absence, more than 30 days).

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 6 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.