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

Docket No. ND05-01246

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

FOR OFFICIAL USE ONLY

 ex-SN, USN
Docket No. ND05-01246

Applicant’s Request

The application for discharge review was received on 20050714.  The Applicant requests the Discharge 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 National Capital Region or a personal appearance hearing discharge review before a traveling panel.  The Applicant did not designate a representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in Washington, DC at the Washington Navy Yard.  The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060317.  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 and 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 and attached document/letter: 

“Please also review my medical record for medical diagnoses.”

“TO WHOM IT MAY CONCERN:

I was been brought up on charges on two occasions during my military service.  In neither event was I advised of my rights as to having an attorney or counselor to act in my best interest in these matters.  I have been doing well in my current job and have not engaged in any activities that would place me in an adverse position with the law whether in Florida or in any other State since I have been discharged from military service,

During my military tour of duty I was diagnosed with “Insomnia” I was not properly assigned a Medical Counselor having experience in the difference between an Administrative Discharge versus a Medical Board.  I was therefore unfairly made to make choices which were, in retrospect, not in my best interest.  The choice I made to accept an Administrative Discharge was presented by the military as more acceptable than a Medical Board which I now realize might have resulted in a Medical Discharge more favorable to me.  The military encouraged me to sign documents to get out on an Administrative Discharge versus a Medical Discharge.

Also, the Navy sent me to a psychologist rather than a psychiatrist (a medical doctor) for further testing and diagnoses.

The other medical condition listed was “Somnambulism” (sleepwalking and Night Terror Disorder) preexisting.  However, these conditions were aggravated by my tour of duty as they reappeared during my active military service.

It is my belief that, if I had been provided with a counselor to act in my best interest, he/she would have reviewed the circumstances of my case and would have requested a Medical Board.  I should have received a Medical Discharge instead of a General Discharge Under Honorable Conditions.  I believe my youth and inexperience were used to my disadvantage (I was under the age of 21) and was not fully aware of the process involved in requesting a Medical Board.

I truly believe that while I was on active duty, I should have been found unfit for continued service because of a mental/or a physical disability, and therefore under Title 10 U.S.C.  § 1201 should have been retired for disability, with appropriate retirement pay.

My medical conditions were due to no fault of my own so I would request at this time that your office review all my military and medical records and correct my discharge to “Honorable” instead of “General Under Honorable Conditions.” I have attached a copy of my DD 214 for your review.

Thank you for reviewing this request.

Sincerely,

[signed] H_ D. M_

Documentation

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

Applicant’s DD Form 214 (2)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20010726 – 20020603		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20020604		Date of Discharge:  20031028

Length of Service (years, months, days):

	Active:    01  04  25  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  18 

Years Contracted:  4 

Education Level:  12				AFQT:  32

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (1) 		Behavior:  1.0 (1) 		OTA:  1.83 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy “E” Ribbon, Joint Meritorious Unit Award, 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: 

030731:	NJP for violation of UCMJ, Article 128: Assault consummated by battery.
	Award:  Forfeiture of $703.45 per month for 1 month, restriction and extra duty for 45 days.  No indication of appeal in the record.

030801:	Retention Warning:  Advised of deficiency (Violation of UCMJ, Article 128 (Assault consummated by battery), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030828:	NJP for violation of UCMJ, Article 107:  False official statement.
	Violation of UCMJ, Article 121: Larceny.
	Award:  Forfeiture of $703.45 per month for 2 months, restriction for 21 days, extra duty for 30 days, reduction to E-2.  No indication of appeal in the record.

030901:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct commission of a serious offense and misconduct pattern of misconduct.

030901:	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.

030904:	Commanding Officer, USS LA SALLE (AGF 3) recommended discharge with a general (under honorable conditions) by reason of pattern of misconduct/commission of a serious offense.  Commanding Officer’s comments:  “SA M_ (Applicant) actions are completely unacceptable and detrimental to the command mission.  Her inability to adhere to regulations is disruptive to her shipmates.  I strongly recommend that SA M_ (Applicant) be separated from the Naval Service.  It is my desire that her characterization of service be General under honorable.”

031020:	Commanding Officer, Transient Personnel Unit, Norfolk directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.

* Applicant’s medical record is missing.
PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031028 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 the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  The Board presumed regularity in the conduct of governmental affairs (E).

The Naval Discharge and Review Board advises the applicant that 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.  One retention warning and 2 nonjudicial punishment proceedings for violations of Articles 128,121, and 107 of the UCMJ marred the Applicant’s service.  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 that had she been provided with a counselor to act in her best interest she would have received a medical discharge instead of a general discharge under honorable conditions.  Additionally, the Applicant states that since she was under the age of 21, her youth and inexperience were used to her disadvantage, and she was not fully aware of the process involved in requesting a Medical Board. The Board notes that the Applicant was notified on 030901of the intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct commission of a serious offense and misconduct pattern of misconduct. Also on 030901, the record shows that the Applicant was advised of her rights, elected not to consult with counsel, and elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation. Relief is not warranted.
 
The Applicant states she was diagnosed with Insomnia and Somnambulism (sleepwalking and Night Terror Disorder- preexisting) and that an administrative discharge was presented by the military as more acceptable than a Medical Board. The Applicant also contends that the military encouraged her to sign documents to get out on an administrative discharge versus a medical discharge. 

There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the military misled her through the separation process.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  In fact, the NDRB found no impropriety and sees no connection between the Applicant’s misconduct and her alleged medical conditions. For the edification of the Applicant, SECNAVINST 1850.4 stipulates that separation for misconduct takes precedence over potential separations for other reasons. (This includes medical discharges) Relief denied.

The Applicant states that she should have been found unfit for continued service because of a mental/or a physical disability, and therefore under Title 10 U.S.C.  § 1201 should have been retired for disability, with appropriate retirement pay.  The NDRB advises the Applicant that 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. Relief is not warranted.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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.  As of this time, the Applicant has not provided any 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 additional evidence related to this 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.  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, Article128 (Assault consummated by battery), Article 107 (False official statement), and Article 121 (Larceny).

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.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

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