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NAVY | DRB | 2003_Navy | ND03-00995
Original file (ND03-00995.rtf) Auto-classification: Denied


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

, ex-SMSA, USN
Docket No. ND03-00995

Applicant’s Request
The application for discharge review was received on 20030516. The Applicant requests the 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040408. 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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1. I am requesting to have my discharge reviewed and upgraded so that I may obtain my GI Bill benefits. I was discharged from the Navy because of overwhelming debts. After 8 years since my discharge, I have reestablished myself financially and I am enrolled at the University of Phoenix. However my present job does not offer tuition assistance. I have learned a valuable lesson about my finances and I’m finding self needing financial assistance for my education. I have applied for grants and other things to help me, but found the only response is to apply for student loans, which I have. I do not want to drop out of school for the second time due to financial obligations. I hope there is something that can be done to upgrade my discharge or to make the G.I. Bill available to me.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copies of DD Form 214 (2)
Questionnaire about Military Service (2 pages)
Request for Information from National Archives and Record Administration (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     920702 - 920713  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 920714               Date of Discharge: 951030

 Length of Service (years, months, days):

         Active: 03 03 17
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 42

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.06 (3)    Behavior: 3.13 (3)                OTA: 3.53

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM(wb*), BATTLE”E”, SSDR

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

950323:  Retention Warning from [USS YELLOWSTONE (AD-41)]: Advised of deficiency (Violation of the UCMJ, Article 121-steal a Realistic Pocket Television of a value of $120.00 from another shipmate.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

950323:  NJP for violation of UCMJ, Article 121: Larceny of a fellow shipmates pocket television.
         Award: Restriction and extra duty for 45 days, reduction in rate (suspended for 6 months). No indication of appeal in the record.

950912:  Reduction in rate suspended at CO’s NJP of 950323 vacated due to continued misconduct.

950914:  NJP for violation of UCMJ, Article 134: Dishonorably fail to pay just debts.
Award: Restriction for 30 days. No indication of appeal in the record.
950920:  USS YELLOWSTONE (AD-41) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a set pattern of failure to pay just debts.
950920:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
951003:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a set pattern of failure to pay just debts.

951025:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19951030 under other than honorable conditions for misconduct due to a pattern of misconduct (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: A characterization of service of under other than honorable conditions is warranted when the member’s conduct constitutes a significant departure from that expected of a Sailor. The Applicant’s service was marred by award of nonjudicial punishment (NJP) on two separate occasions for larceny and dishonorably failing to pay just debts. The Applicant’s conduct, which forms the primary basis for determining the character of her service, falls short of that required for an honorable characterization of service. Relief denied.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing educational 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.

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, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.

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, Change 9, effective
22 Jul 94 until 02 Oct 96), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A PATTERN OF MISCONDUCT.

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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