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NAVY | DRB | 2002_Navy | ND02-01284
Original file (ND02-01284.rtf) Auto-classification: Denied


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

ex-ICFN, USN
Docket No. ND02-01284

Applicant’s Request
The application for discharge review, received 020911, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The Applicant requested a documentary record discharge review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030619. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the Applicant’s service. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. I would like to upgrade my discharge because it has been long enough. I would like to be able to get benefits for me and my daughter. Because what I have done has been paid for.

 Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant's DD Form 214 (Member 1)
Separation without orders, dated December 17, 1991

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     851011 - 851117  COG
         Active: USN                        851118 - 880819  HON
         Inactive: USNR (DEP)     890926 - 891015  COG

 Period of Service Under Review :
Date of Enlistment: 891016               Date of Discharge: 911220

 Length of Service (years, months, days):

         Active: 02 02 05         Does not exclude lost time
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

 Education Level: 12                        AFQT: 39

 Highest Rate: IC3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (6)    Behavior: 3.10 (6)                OTA : 3.60

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC, NDSM

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

910705:  Special Court Martial
         Charge I: violation of the UCMJ, Article 121:
         Specification: Stealing various jewelry of a value of over $100.00 on 910505.
         Findings: to Charge I and specifications 1 thereunder, guilty with exception.
         Sentence: Confinement for 75 days, forfeiture of $300 per month for 3 months, reduction to ICFN.
         CA 910812: Sentence approved and ordered executed.

910719:  Applicant to confinement.

910821:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
910821:  Applicant advised of her rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
910911:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

910917:  Applicant from confinement.

 911017:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense, that the misconduct warranted separation, and by a vote of 2 to 1 recommended discharge under other than honorable conditions. Dissenting member's explanation: I recommended a general discharge because I feel the member should be discharged but the court-martial awarded her sufficient punishment.

911203:  Chief of Naval Personnel recommended to Assistant Secretary of the Navy (Manpower and Reserve Affairs) Applicant's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

911211:  Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

911212:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 911220 under other than honorable conditions for misconduct due to commission of a serious offense (A). The Board presumed regularity in the conduct of governmental affairs (B). 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).

 Issue 1: In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable . A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor. The record is void of any evidence that the Applicant was not responsible for her conduct or that she should not be held accountable for her actions. The Applicant’s service record is marred by special court-martial conviction for theft for which a bad conduct discharge is authorized. The Applicant’s summary of service clearly reflects her disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated she was unsuitable for further service. An upgrade to general (under honorable conditions) would be inappropriate. Relief denied.

 Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing benefit or employment opportunities as requested in the issue. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. Relief denied. However, the NDRB did note an administrative error on the original DD Form 214 and corrected it to reflect the Applicant’s previous three years of honorable service which the Veterans Administration may use to determine eligibility for post-service benefits.

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 the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. Evidence of continuing educational pursuits, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.

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 additional documentation to support any claims of post-service accomplishments 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), effective 15 Aug 91 until
04 Mar 93, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 " afls14.jag.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:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  720 Kennon Street SE RM 309
                  Washington Navy Yard DC 20374-5023      


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