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Docket No. ND05-01071

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

FOR OFFICIAL USE ONLY

 ex-SA, USN
Docket No. ND05-01071

Applicant’s Request

The application for discharge review was received on 20050614.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation form the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051117.  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 Other Than Honorable Conditions by reason of misconduct due to a pattern of misconduct.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I would like to receive medical benefits from the VA located in Iowa City.”

The Applicant’s representative submitted no issues for consideration.

Documentation

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

Applicant’s DD Form 214 (2)
Appointment of Veterans Service Organization as Claimant’s Representative, dtd June 7, 2005 (in triplicate)
49 pages from Applicant’s service/medical records

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19891028 - 19900612	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19900613		Date of Discharge:  19930226

Length of Service (years, months, days):

	Active:    02  07  21  (Excludes lost time)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  23 days

Age at Entry:  18

Years Contracted:  4

Education Level:  12				AFQT:  40

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.1 (3)			Behavior:  2.8 (3)		OTA:  3.13

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Sea Service Deployment Ribbon, Southwest Asia Service Medal (w/Bronze Star)

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority:  MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events: 

910131:	NJP for violation of UCMJ, Article 92: Dereliction of duty-failed to remain awake while on aft lookout on or about 2134, 20Jan91.
	Award:  Restriction and extra duty for 30 days.  No indication of appeal in the record.

910621:	Retention Warning:  Advised of deficiency (Violation of UCMJ Article 121, Larceny), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920814:	NJP for violations of UCMJ:
Article 107: False official statement on 29 Jul 92.
Article 121: Wrongfully appropriate a government vehicle on 29 Jul 92.
	Award:  Forfeiture of $100 per month for 1 month, restriction and extra duty for 15 days, reduction to E-1.  Reduction suspended for 6 months.  No indication of appeal in the record.

920820:	Retention Warning:  Advised of deficiency (CO’S NJP 14 AUG 92, for viol UCMJ Art 107, False official statement on 29 Jul 92.  Viol Art 121, Wrongfully appropriate a government vehicle on 29 Jul 92), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

921218:	NJP for violation of UCMJ, Article 128:  Assault FN V_ on 10 Dec 92.
	Award:  Confinement on bread and water for 3 days.  No indication of appeal in the record.

930119:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 108:
	Specification: Damage government property of some amount on 5 Dec 92.
	Charge II: violation of the UCMJ, Article 109:
	Specification: Damage property other than government property of an amount of approx $250.00 on 5 Dec 92.
	Charge III: violation of the UCMJ, Article 134 (2 specs):
	Specification 1: Receive stolen property on 5 Dec 92.
	Specification 2: Incapacitated for performance of duties on 31 Dec 92.
	Finding: to Charge I, II, and III and the specifications thereunder, guilty.
	Sentence: Forfeiture of $304.00, confinement for 20 days and reduction to E-2.
	CA action 930127:  Sentence approved and ordered executed.

930119:	Applicant to confinement.

930125:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to a pattern of misconduct, as evidenced by all punishments under the UCMJ in current enlistment.

930125:	Applicant advised of rights and having consulted with counsel, elected to waive all rights.  [Document dated 920125 and determined to be in error.]

930128:	Commanding Officer, USS CAMDEN recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ in current enlistment.  Commanding Officer’s comments:  “SA C_ (Applicant) is a burden to the U.S. Navy.  In his 2 1/2 years of active service, SA C_ (Applicant) has been to CO S NJP three times and once to summary court-martial.  He has been counseled many times about his poor performance and received a formal PG 13 warning on 20 AUG 92.  SA C_ (Applicant) chose to disregard these counselings and was taken to mast and to SCM.  SA C_ (Applicant) has no potential for further naval service.  Recommend immediate separation from the naval service, and that service be characterized as other than honorable.”

930208:	Applicant from confinement.  Applicant’s EAOS changed to 94JUL02.

930212:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930226 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of under other than honorable conditions.  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).  

An under other than 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 three nonjudicial punishment proceedings and one summary court-martial conviction for violations of Articles 92, 107, 108, 109, 121, 128 and 134 of the UCMJ.  The Applicant’s violations of Articles 92, 107, 121, 128 and 134 (receive stolen property) are serious offenses.  The evidence of record also demonstrates that the Applicant was issued his first retention warning on 19910621 for a violation of Article 121, larceny, for an event that was never adjudicated.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant requests an upgrade in his character of service in order to receive benefits from the Veterans Administration.  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.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Relief on this basis is 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.  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, effective 15 Aug 91 until 
04 Mar 93), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A PATTERN OF MISCONDUCT. 

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 order/regulation, Article 107, false official statement, Article 109, damage property of less than $500, Article 121, larceny, Article 128, assault or Article 134, receive stolen property.

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