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Docket No. ND05-01502

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

FOR OFFICIAL USE ONLY

ex-GSMFN, USN
Docket No. ND05-01502

Applicant’s Request

The application for discharge review was received on 20050913.  The Applicant requests the Discharge Characterization of Service received at the time of 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 20060621.  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 a pattern of misconduct.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I feel that I served my country to the best of my ability and because of a disagreement in which I was not in fault I was discharged.  I had remained out of trouble for 3yrs.  I assisted in many projects to help overseas.  Now I would like to attend school + buy a house for my family and would like to be able to use my military benefits.  Please upgrade my discharge to an honorable.”

Applicant’s Remarks:  (Taken from the DD Form 293)  “I’m requesting the upgrade for the benefit of my 2 daughters.  I would love to be able to get the home that I could leave them.  Also to further my education.  Please upgrade my discharge I really would appreciate it.  Thank you.”

Documentation

Only the service and medical records was reviewed.  The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

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

	Active:    USA			19920212	19920521	ELS
Inactive:  USNR (DEP)	19940929	19941212	HON

Period of Service Under Review:

Date of Enlistment:  19941213		Date of Discharge:  19980625

Length of Service (years, months, days):

	Active:    03  06  12  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  24

Years Contracted:  4 

Education Level:  12				AFQT:  NA*

Highest Rate:  GSM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:   NA*		Behavior:  NA*	OTA:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Sea Service Deployment Ribbons (2), Armed Forces Service Medal, Nato Medal.

* Not Available

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

GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority:  MILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events: 

941213:	Commenced active duty for a period of 4 years.

950329:	Counseling entry made in training record, assigned EMI for sleeping in class. 

950407:	Counseling entry made in training record, assigned EMI for sleeping in class.  

950427:	NJP for violation of UCMJ, Article 121: Did, on 950408, steal one cassette tape, the property of the Navy Exchange, BLDG 111.
	Award:  Forfeiture of $179.00 pay per month for 1 month, restriction and extra duty for 10 days.  No indication of appeal in the record.

950427:	Retention Warning:  Advised of deficiency (Poor military performance, to wit: shoplifting/theft.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

950511:	NJP for violation of UCMJ, Article 92: Did, on 950427, fail to obey a lawful order by wrongfully cheating on drawing in MM/BT “A” School.
	Award:  Forfeiture of $184.00 pay per month for 1 month, restriction and extra duty for 14 days.  No indication of appeal in the record.

950511:	Applicant dropped from MM/BT “A” School due to lack of performance and negative training attitude.

950608:	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 commission of a serious offense as evidenced by all punishments under the UCMJ in your current enlistment.

950608:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

950728:	An Administrative Discharge Board, based upon the preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to commission of a serious offense.  By a unanimous vote, the Administrative Discharge Board recommended retention.

950906:	Commanding Officer, Service School Command, Great Lakes recommended discharge by reason of misconduct due to commission of a serious offense.  Commanding Officer’s comments:  “Enclosures (1) and (2) are forwarded in support of subject administrative separation action.  After a thorough review of enclosure (1), I concur with the Administrative Board’s findings and recommendation that FR C_ has potential for further Naval Service.”

951003:	BUPERS Message directed retention of FR A_ C_ (Applicant). BUPERS directed the Applicant receive written counseling stating: “IAW BUPERS 031921Z OCT 95, you are being retained in the Naval Service in spite of an Administrative Board finding on 950728 that you had committed misconduct due to commission of a serious offense for VUCMJ Articles 92 and 121.”

980417:	NJP for violation of UCMJ, Article 92: Dereliction in the performance of duties.
	Award:  Forfeiture of $700.00 pay per month for 1 month, restriction for 30 days, reduction to E-3.  No indication of appeal in the record.

Service Record did not contain the Administrative Discharge package.
Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980625 by reason of misconduct due to a pattern of misconduct (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 Applicant states he was discharged because of a “disagreement in which I was not in fault.” The Applicant bears the burden of establishing his issues through the presentation of substantial and credible evidence.  There is no evidence in the record, nor has the Applicant produced any evidence, that the discharge was not proper and equitable.  The Board presumed the Applicant was notified of the intended recommendation for discharge by reason of misconduct due to a pattern of misconduct, was advised of his rights and provided the opportunity to consult with counsel, and elected or waived each right.  The Board presumed that the Commanding Officer, recommended discharge with a general (under honorable conditions) by reason of misconduct due to a pattern of misconduct. Relief denied.

The Applicant contends that he “served my country to the best of my ability.” He also states that after some problems early in his enlistment that he “remained out of trouble for three years.” He states that he assisted with many projects overseas. 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.  The Applicant’s service was marred by one retention warning and three nonjudicial punishment proceedings for violations of Articles 92 (2 specs) and 121 of the UCMJ.  This sequence of misconduct meets the requirements for separation by reason of misconduct due to a pattern of misconduct (A). The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his 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 states that he would like to utilize military benefits. 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 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), Change 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - 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 121 – larceny, and Article 92 – failure to obey order or regulation.

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