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Docket No. ND06-00651

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

FOR OFFICIAL USE ONLY

ex-AR, USN
Docket No. ND06-00651

Applicant’s Request

The application for discharge review was received on 20060412.  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 20070201.  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

The Applicant presented no decisional issues.  Applicant states “I was proud to have served the Navy an am sorrowful of my performance during the last year of my service.  I would like to have another opportunity for an employment position with the United States government.”

Documentation

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

175 pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19920428 - 19920608	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19920609		Date of Discharge:  19951127

Length of Service (years, months, days):

	Active:    03  05  18  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):  

	Unauthorized absence:  30 days
	Confinement:		  30 days

Age at Entry:  19

Years Contracted:  4 

Education Level:  12				AFQT:  53

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.5 (2) 	Behavior:  3.5 (2) 		OTA:  3.60 

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

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events: 

940715:	Applicant Unauthorized absence from unit from 0700, 940715 to 0315, 940719.

940804:	NJP for violation of UCMJ, Article 86:  Unauthorized absence from unit from 0700, 940715 to 0315, 940719.
	Award:  Forfeiture of $200.00 pay per month for 2 months, restriction and extra duty for 40 days.  No indication of appeal in the record.

941011:	Applicant to Unauthorized absence on 941011. [Extracted from C.O. TPU Norfolk letter]

941109:	Applicant from Unauthorized absence on 941109. [Extracted from C.O. TPU Norfolk letter]

950104:	Counseling:  Advised of deficiency (Missing divisional muster, UA from 0700-0800 on 941221.), notified of corrective actions and assistance available.

950223:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86:  Unauthorized absence on or about 941011 until on or about 941109.
	Plea:  Guilty					Findings:  Guilty
	Charge II:  violation of the UCMJ, Article 87:  Did on or about 941102 through design, miss ships movement.  
	Plea:  Guilty					Findings:  Guilty
Charge III:  violation of the UCMJ, Article 91:  Did willfully disobey a lawful order on or about 950115.
Plea:  Guilty					Findings:  Guilty
Charge IV:  violation of the UCMJ, Article 134:  Disorderly conduct prejudicial to good order and discipline on 950115.
Plea:  Guilty 					Findings:  Guilty
	Finding: to Charge I, Charge II, Charge III, Charge IV, and the specification thereunder, guilty.
	Sentence: Forfeiture of $568.00 pay per month for 1 month, confinement for 30 days, and reduced to E-1.
	CA action 950227:  Sentence approved and ordered executed.  
	
950223:	To confinement

950317:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

950317:	Applicant notified of intended recommendation for discharge with the characterization of your service as under other than honorable conditions by reason of misconduct due to commission of a serious offense.

950320:	From confinement

951017:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to commission of a serious offense, that such misconduct warranted separation, and recommended discharge with a under honorable conditions (general).

960112:	Commanding Officer, recommended 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 19951127 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 Applicant introduced no decisional issues for consideration by the Board.  However, the Applicant states “I was proud to have served the Navy an am sorrowful of my performance during the last year of my service.  I would like to have another opportunity for an employment position with the United States government.” 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, one nonjudicial punishment proceedings for violation of Article 86(Unauthorized absence) of the UCMJ.  The Applicant also received a Summary Court-Martial for violation of UCMJ Articles 86 (Unauthorized absence), 87 (Missing movement), 91 (Disobeying a lawful order) and 134 (Disorderly Conduct).  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.

For the edification of the Applicant, 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 of 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.  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 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, Articles 87 (Missing Movement), 91 (Disobeying a lawful order) and 134 Disorderly conduct prejudicial to good order and discipline).  

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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