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Docket No. ND06-00712

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

FOR OFFICIAL USE ONLY

ex-EMFR, USN
Docket No. ND06-00712

Applicant’s Request

The application for discharge review was received on 20060502.  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 20070125.  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 - ISSUES AND DOCUMENTATION

Decisional Issues

	No decisional issues.

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214 (Member 4)
Applicant’s letter, undated
Letter to Applicant from Department of Veterans Affairs, undated
Job/Character Reference ltr from R_ F_, Owner, Jiffy Lube of Belleville, undated
Evaluation Report and Counseling Record for period January 22, 2000 to July 12, 2000
Evaluation Report and Counseling Record for period April 3, 1999 to January 21, 2000
Evaluation Report and Counseling Record for period November 12, 1998 to April 2, 1999 (2)
Evaluation Report and Counseling Record for period July 13, 2000 to August 25, 2000
Evaluation Report and Counseling Record for period August 26, 2000 to February 28, 2001 (2)
Evaluation Report and Counseling Record for period July 3, 2001 to July 15, 2002

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19970930 - 19980901	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19980902		Date of Discharge:  20031112

Length of Service (years, months, days):

	Active:    05  02  11  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  41 days
	Confinement:		  21 days

Age at Entry:  18

Years Contracted:  6

Education Level:  12				AFQT:  82

Highest Rate:  EM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.8 (5)		Behavior:  2.0 (5)		OTA:  2.63

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Armed Forces Expeditionary Medal, Meritorious Unit Commendation, Sea Service Deployment Ribbon (2).

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: 

000713:	NJP for violation of UCMJ, Article 92: Derelict in the performance of his duties in that he failed to complete his progress remedial.
Violation of UCMJ, Article 107: On or about 000517, with intent to deceive make to MMC T_, USN, an official statement which was totally false.
	Award:  Forfeiture of $585.00 per month for 2 months, reduction to E-3, oral reprimand.  No indication of appeal in the record.

020214:	NJP for violation of UCMJ, Article 86 (2 specs):  Absence without leave.
	Specification 1: On 011128, without authority, absent himself from his unit, and did remain so absent until on or about 011204 (6 days).
	Specification 2: On or about 011217, without authority, absent himself form his unit, and did remain so absent until 011222 (5 days).
Violation of UCMJ, Article 92: Violate a lawful regulation by wrongfully touching AGAN T- A. M_, U.S. Navy, on the buttocks.
	Award:  Forfeiture of $764.00 per month for 1 month, restriction and extra duty for 30 days, reduction to E-3.  Reduction suspended for 6 months.  No indication of appeal in the record.

020214:	Retention Warning:  Advised of deficiency (Commanding Officer’s nonjudicial punishment held on 020214 for violation of the Uniform Code of Military Justice, Article 86 (2 specs) - Absence without leave, and Article 92 - Failure to obey a General Order or Regulation.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020606:	Reduction in pay grade awarded at NJP on 020214 vacated due to further misconduct.

021022:	Applicant to unauthorized absence at 0630.

021023:	Applicant missed ship’s movement.

021024:	Applicant from unauthorized absence at 1600 (2 days/surrendered).

030109:	NJP for violation of UCMJ, Article 92: Derelict in the performance of duties by falling asleep in Aft Steering.
	Award:  Forfeiture of $657.00 per month for 2 months, restriction and extra duty for 40 days, reduction to E-2.  Reduction suspended for 6 months.  No indication of appeal in the record.

030708:	Reduction in pay grade awarded at NJP on 030109 vacated due to further misconduct.

030719:	Summary Court-Martial.
	Charge:  violation of the UCMJ, Article 86:
	Specification 1: Without authority absent himself from USS HARRY S TRUMAN on 030524 until his surrender on 030617 (24 days)
	Specification 2: Without authority absent himself from USS HARRY S TRUMAN on 030705 until his surrender on 030710 (5 days)
	Finding: to Charge and the specification thereunder, guilty excepting the words, “030524” substituting therefor the words, “030526”.
	Sentence: Forfeiture of $766.00 for 1 month, confinement for 21 days, reduction to E-1.
	CA action 030722:  Sentence approved and ordered executed.

031008:	Conditional waiver request.  I understand I am being considered for administrative separation from the Naval Service and that such discharge could result in an other than honorable characterization of service.  However, based on my overall record, I believe that the characterization of my service should be a general (under honorable conditions).  In lieu of electing an administrative board for which I am entitled, I request a general.  I understand this characterization of service as general (under honorable conditions), with the basis of my administrative separation, may deprive me of certain veteran’s benefits based upon my current period of active service.

031029:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of a pattern of misconduct and commission of a serious offense.

031029:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

031112:	Commanding Officer directed discharge with a general (under honorable conditions) by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.  Electrician’s Mate Fireman Recruit C_ S_(Applicant) was separated from the Naval service on 031112 with a general(under honorable conditions) discharge and an SPD code of JKQ/RE4.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031112 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 Applicant did not request a discharge characterization change.  Applicable regulations stipulate that a request for review from an Applicant who does not have an Honorable discharge shall be treated as a request for a change to an Honorable discharge.

When a member’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  Characterization of service of general (under honorable conditions) 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.  There is irrefutable evidence that the Applicant’s conduct during his time in the service was not honorable.  Indeed, the Applicant’s records contain:
•	Nonjudicial punishment proceedings on 20000713 for violation of UCMJ Article 92 (Dereliction in the performance of duties) and Article 107 (False official statement);
•	Nonjudicial punishment proceedings on 20020214 for violation of UCMJ Article 86 (Unauthorized absence – 2 specifications) and Article 92 (Failure to obey order, regulation);
•	Retention warning entry on 20020214 for deficiencies in performance and conduct concerning NJP on 20020214;
•	Nonjudicial punishment proceedings on 20030109 for violation of UCMJ Article 92 (Dereliction in the performance of duties); and 
•	Conviction by summary court-martial on 20030719 for violation of UCMJ Article 86 (Unauthorized absence – 2 specifications totaling 27 days).
The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls well below that required for an honorable characterization of service.  Relief denied.

The Applicant is advised 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 or enhancing employment and educational opportunities.  Additionally, the Board has no jurisdiction over reenlistment, reentry, or reinstatement into any of the Armed Forces.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  Since these issues do not provide a foundation upon which the Board can grant relief, relief on this basis is not warranted.

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 post-service accomplishments or any other evidence related to the discharge at that time.  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, Article 92 Failure to obey order, regulation and Article 107 False official statement.

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 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