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

FOR OFFICIAL USE ONLY

 ex-PCSA, USN
Docket No. ND06-00150

Applicant’s Request

The application for discharge review was received on 20051101.  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 20060908.  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 commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“Board was waived and was not properly explained wish to upgrade discharge to receive better job & benefits”

Documentation

Only the service and medical records were 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):

	Inactive:  USNR (DEP)	19920915 - 19921209	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19921210		Date of Discharge:  19951013

Length of Service (years, months, days):

	Active:    02  10  04
	Inactive:  None

Time Lost During This Period (days):  

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  21

Years Contracted:  4 (4 month extension)

Education Level:  11  (GED)			AFQT:  54/88

Highest Rate:  PCSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.3 (3)			Behavior:  3.3 (3)		OTA:  3.40

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Sea Service Deployment Ribbon, National Defense Service Medal, Southwest Asia Service Medal, Armed Forces Expeditionary Medal, Navy Unit Commendation

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events: 

950713:	NJP for violation of UCMJ, Article 123a:  Making, drawing or uttering check, draft, or order without sufficient funds (four specs).
Violation of UCMJ, Article 134: False of unauthorized pass offenses (three specs).  
Award:  Forfeiture of $479 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2 and process for administrative discharge.  No indication of appeal in the record.

950714:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of commission of a serious offense as evidenced by results of Captain’s Mast for events occurring 20, 23, March 22 April; and 31 May 1995.

950714:	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.

950720:	Commanding Officer, USS NASHVILLE (LPD 13), recommended  Applicant’s discharge under other than honorable conditions by reason of commission of a serious offense as evidenced by results of Captain’s Mast for events occurring 20, 23 March; 22 April; 31 May 1995.  Commanding Officer’s comments:  “PCSA C_ (Applicant) has shown complete disregard for Naval Regulations and standards.  I have no doubt that PCSA C_(Applicant) did commit the offenses investigated at Captain’s Mast for events occurring 20, 23 March; 22 April; 31 May 1995 and that such conduct has no place in the U.S. Navy.  I strongly recommend that he be separated from the Naval service with an Other Than Honorable Discharge.”

950825:	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.

950827:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as other than honorable by reason of commission of a serious offense as evidenced by results of Captain’s Mast for events occurring 20, 23, March; 22 April; and 31 May 1995.

950831:	BUPERS reviewed administrative separation request and found the wrong notification procedures were used.  BUPERS informed Command that it may reprocess member for administrative separation using administrative board procedures.  No further action with regard to administrative separation is contemplated.

950908:	Memorandum from Legal Officer, USS NASHVILLE (LPD 13) to BUPERS indicates Applicant was re-notified and documents faxed to BUPERS on 950827.

950908:	Commanding Officer, USS NASHVILLE (LPD 13), recommended Applicant discharge under other than honorable conditions by reason of commission of a serious offense.  Commanding Officer’s comments:  “PCSA C_(Applicant) has no further potential for Naval service due to commission of a serious offense as evidenced by results of Captain’s Mast for events occurring 20, 23 March; 22 April; 31 May 1995.  Recommend (Applicant) be separated with said character of service being other than honorable.”

951004:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19951013 by reason of misconduct due to commission of a serious offense (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 nonjudicial punishment proceedings for four specifications of violations of Article 123a of the UCMJ and three specifications of violations of Article 134 of the UCMJ.  The Applicant’s violations of Articles 123a and 134 of the UCMJ are considered serious offenses, punishable by punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial.  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 implies that his discharge was inequitable because he waived his right to administrative separation board and that his right to an administrative board was not properly explained.  The evidence of record shows that the Applicant elected to waive his right to legal counsel and an administrative separation board on 19950825.  There is no evidence in the record, and the Applicant provided no documentation to support his claim, that the Applicant was not afforded due process during his administrative separation.  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 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), Change 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 123a, procure anything of value/checks insufficient funds etc., or Article 134, posses or use with intent to defraud or deceive/false or unauthorized pass offenses.

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