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Docket No. ND05-01023

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

FOR OFFICIAL USE ONLY

 ex-HA, USN
Docket No. ND05-01023

Applicant’s Request

The application for discharge review was received on 20050601.  The Applicant requests that his characterization of service received at discharge be 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 20051020.  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) 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 and attached letter: 

“Looking back at my enlistment period, I made irresponsible choices which ultamately led to my general discharge.  I have an attached letter better explaining myself”. 

“To Whom it may concern:

	This is to request that my discharge be upgraded from general to honorable, mainly for my Montgomery G.I. Bill.
	Following my discharge from the U.S. Navy on March 24, 2004, I have had lots of time to look back and reflect on my behavior while in the Navy.
	At this time, I realize I made several bad choices which led to improper behavior in the Navy.  I would like to formally apologize for my unacceptable behavior.  Now I realize I did some things which resulted from my poor judgement and led to my misconduct.  I am truly sorry.  
	I have corrected my behavior and have been a full time student at Catawba Valley Community College for the last 12 months.  In addition, I am attending Church in Hickory, NC, which has helped me straighten out my life.  I have also worked full time as a Pharmacy Technician for the last 13 months.  In this packet are several documents to prove that I am trying my best to improve my lifestyle and give back to the community.  Please advise when this has been completed, or if additional information is required.

Respectfully Yours, 

[signed] 
B_ C. S_ (Applicant)

[home address]”

Documentation

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

Applicant’s DD Form 214  (Service 2)
Character Reference ltr from K_ E. K_, R. PH, dtd May 15, 2005
Grade Report, Catawba Valley Community College, dtd Spring Semester 2005
Grade Report, Catawba Valley Community College, dtd Fall Semester 2004
Character Reference ltr from K_ S. R_, Division Chair of Humanities, Catawba Valley Community College, dtd October 21, 2004
Character Reference ltr from M_ S_, dtd August 4, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20010719 – 20010801	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010802		Date of Discharge:  20040324

Length of Service (years, months, days):

	Active:    02 07 23  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18 

Years Contracted:  4 (12 month extension)

Education Level:  12				AFQT:  76

Highest Rate:  HN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.0 (1) 		Behavior:  1.0 (1) 		OTA:  1.67

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  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: 

031022:	Civil Conviction:  Nineteenth Judicial Circuit Court in Lake County, Illinois for violation of shoplifting.
Sentence:  Fine for $75.00.

040105:	Civil Conviction:  General Court of Justice District Court Division of Caldwell County, North Carolina.
Pleaded guilty to injury to personal property, found guilty of reckless driving.  
Sentence:  Fine awarded: $1492.17 with 90 days in jail suspended for 2 years.  

040128:	Retention Warning:  Advised of deficiency (acts unbecoming of a naval service member and dishonor to the military), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

040218:	Fitness for duty examination:  
	Assessment:  Patient not fit for duty at this time secondary to smell of alcohol on breath & patient stating that drink a 12 pack last evening by himself.  Only slept 4 hours by morning.  He does not need one on one supervision at this time.  Denies suicidal ideation/homicidal ideation.  
	
040226:	NJP for violation of UCMJ, Article 92 (2 Specs):  
Specification 1:  Fail to obey by wrongfully consuming alcohol.
Specification 2:  Derelict in the performance of duty. 
Additional Charge I:  Violation of UCMJ, Article 92:  
	Fail to obey petty officer by having an unattended visitor in his BEQ room.
	Charge II:  Violation of UCMJ, Article 134:  Drunkenness-incapacitation for performance of duties through prior wrongful indulgence in intoxicating liquor.
Additional Charge II:  Violation of UCMJ, Article 107:  Intent to deceive.
	Award:  Forfeiture of $668.00 pay per month for 2 months, extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

040226:	Retention Warning:  Advised of deficiency, i.e. violations of UCMJ, Article 92 (failure to obey order or regulation), Article 107 (false official statement), Article 134 (drunkness-incapication), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

040305:	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 a pattern of misconduct, misconduct due to a commission of a serious offense and misconduct due to a civilian conviction.

040305:	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.

040312:	Commanding Officer, Naval Hospital, Charleston, recommended to Commander, Navy Region Southeast, Jacksonville, that the Applicant be discharged with a general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.  Commanding Officer’s comments:  “HA S_ (Applicant) is to be discharged from the Naval Service under General-Under Honorable Conditions due to his continued pattern of misconduct.  HA S_ (Applicant) has been counseled numerous times on his professional conduct and disrespect.  His chain of command has provided him several opportunities to improve himself through classes and counseling.  He has continued his misconduct even after being assigned a mentor and counseling”.

040319:	Commander, Navy Region Southeast, authorized the Applicant's discharge with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040324 by reason of misconduct due to 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).  

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.  The Applicant’s service was marred by nonjudicial punishment (NJP) for violations of the UCMJ Article 92 (failure to obey order, 3 specifications), Article 107 (false official statement), and Article 134 (drunkenness) following civil convictions for shoplifting, reckless driving and injury to personal property.  Each violation of Article 92 and 107 is defined as the commission of a serious offense, the misconduct for which the Applicant was discharged.  Separation under these conditions generally results in a service characterization of less than honorable.  Relief is not warranted.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization based 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 purpose of enhancing medical, 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 denied.

There is no law or regulation, which provides that an unfavorable discharge may be upgraded, as a result of 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 provided three character reference letters and grade reports for two semesters of college classes as post service documentation for the Boards to consideration.  After careful consideration, the Board concluded 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), 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.  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 92 (failure to obey) and 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