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NAVY | DRB | 2004_Navy | ND04-00113
Original file (ND04-00113.rtf) Auto-classification: Denied


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

ex-AN, USN
Docket No. ND04-00113

Applicant’s Request
The application for discharge review was received on 20031024. The Applicant requests the characterization of service received at the time of discharge be changed to honorable and a narrative reason for separation change. The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that she was approaching the 15-year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington D.C. area. Applicant advised the board she wanted to attend a personal appearance hearing in the Washington D.C. area and obtained representation from the Disabled American Veterans. On 20040616, Applicant responded to the Scheduling Notice advising she was unable to attend a hearing, and requested a documentary record discharge review. Applicant also requested and was granted a 90 day postponement of the review to present supporting documentation.

Decision

A documentary review was conducted in Washington, D.C. on 20041008. 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 HONORABLE CONDITIONS (GENERAL)/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“1. I request a copy of my review Board records when I had an administrative Board Hearing June/July 1988 at Jacksonville NAS.

2. I was told by my attorney at Jacksonville NAS that my discharge could be upgraded to Honorable and that the narrative reason could be changed.

3. I had previous five years of Service with the U.S. Army, U.S. Army Reserves, U.S. National Guard. I received an honorable discharge and had no incidents during my service period.

4. I have no criminal history prior to entering service and have no criminal history of any kind, no offenses, no misdemeanors and no felony convictions upon leaving military.

5. I was discharged against and harassed by the Captain who gave me the offense of misconduct of a serious nature. He did not tell the whole truth about the event. I would like to go into more detail. First, however, I need to review my administrative Board Hearing records, please send them to me for review. I have been requesting these records now for 14 years. I don’t understand why the delay. Please respond.”

Additional issues submitted by Applicant’s representative (Disabled American Veterans):

 6. “Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of the current General Under Honorable Conditions discharge to that of Honorable.

The FSM served on active service from October 13, 1987 to November 18, 1988 discharged due to Misconduct-Commission of a Serious Offense. Prior to that there is registered service with the U.S. Army-USAR from November 19, 1982 to March 25, 1983 with an Honorable discharge.

The FSM explains on his application that he requests equitable relief due to the circumstances of the case as explained in their enclosed statement. FSM maintains there was no failure to obey a lawful order that instructions were followed as allowed until the interruption by a superior officer. If no action had been taken to stop by the second office charges would have been filed against the FSM for that, since she followed the order to stop the previous officer to that opportunity to file charges. It seems the FSM was it a difficult situation and no one was taking the opportunity to really find out what was going on, or if an order really was disobeyed.

The FSM asks that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.
In the course of the review of this application for discharge upgrade, we have determined that a change is warranted based on consideration of the applicant’s military record and other evidence viewed, even though the discharge was determine to be equitable and proper at the time of issuance. This to include all areas of consideration as outlined in 32 CFR 724.903.
We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Applicant’s DD Form 214 from active duty training from the US Army Reserves
Letter from Salle Mae Servicing to Applicant concerning completion of payment of education loans, dated March 11, 1998
Letter from Direct Loans granting a deferment of payments, dated August 10, 2003
Certificate of Award, dated February 29, 1988 to March 4, 1988
Official record for continuing education units, certified May 16, 1988
Associate in Arts, dated December 17, 1999
Certificate of recognition, dated June 1, 1993
Character reference, dated April 30, 1999
Character reference, dated April 11, 1998
Character reference, undated
Performance appraisal, dated October 4, 2002
Employee Performance Review, July 18, 1998
Thank you letter to Applicant, dated July 1, 1998
Police file from Palm Springs
Performance values (partial unreadable)
Congratulations letter to Applicant, dated September 19, 2002
Congratulations letter to Applicant, dated January 17, 2003
Letter from Applicant, dated November 7, 2003
Letter from Applicant, dated August 20, 2004 (6 pages) (2 copies)
Jury attendance certification, dated June 29, 2004 (2 copies)

PART II - SUMMARY OF SERVICE

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

          Active: USAR              821119 - 830325  HON      Rel from ADT
         Inactive: USNR (DEP)     870821 - 871012  COG

 Period of Service Under Review :
Date of Enlistment: 871013               Date of Discharge: 881118

 Length of Service (years, months, days):

         Active: 01 01 06
         Inactive: 00 01 18

 Age at Entry: 26                          Years Contracted: 4

 Education Level: 12 ½*             AFQT: 76

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.40 (1)    Behavior: 2.80 (1)                OTA: 2.80

Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

*High School diploma issued due to college credits

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

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :
880504:  Retention Warning: Advised of deficiency (Attitudes not consistent with views of the Navy. Equal opportunity policy.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880505:  NJP for violation of UCMJ, Article 92 (2 specs): Failed to obey a lawful order to which member has knowledge about.
 Specification 2: Dismissed.
         Award: Correctional custody for 30 days. No indication of appeal in the record.
880509:  Psychiatrist evaluation: Diagnosis: Passive/aggressive personality disorder, EPTE. Recommend administrative separation as unsuitable for military service.

880524:  Applicant terminated from correctional custody program.

880602:  Applicant’s statement.

880629:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
880629:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27(b), elected to appear before an Administrative Discharge Board.
880629:  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 recommended discharge under honorable conditions (general).

880826:  Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to the commission of a serious offense.

880917:  CNMPC directed the Applicant's discharge under honorable conditions (general) 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 19881118 under honorable conditions (general) for misconduct due to commission of a serious offense (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

Issues 1 through 5: There is credible evidence in the record that the Applicant violated a lawful order. She was found guilty at nonjudicial punishment for violations of Article 92, UCMJ, two specifications. Furthermore, after a full hearing, an administrative discharge board unanimously found that the Applicant had committed misconduct due to commission of a serious offense. The Applicant’s allegation that she was the victim of discrimination by her Captain is unsupported by the record and does not refute the presumption of regularity in this case. The evidence of record does not demonstrate that the Applicant was not responsible for her conduct or that she should not be held accountable for her actions. Relief denied.

A "serious offense" is defined by the MILPERSMAN as an offense under the UCMJ for which the Manual for Court-martial authorizes a punitive discharge. A wide range of UCMJ offenses meet this criteria, including disrespectful language, failure to obey a lawful order or written regulation, drunken driving, forgery, missing ship's movement, unauthorized absence for 30 days or more, making false official statements, and so forth, right up to the most "serious" crimes of spying, aiding the enemy in time of war, mutiny, rape and murder. A person in the military must abide by the standards as set forth in military regulations and laws, regardless of what guidelines his civilian counterparts might utilize. While the board regrets that the applicant must live with the stigma associated with the term "serious offense," it cannot justify changing the reason for discharge unless it is inappropriate in describing the circumstances surrounding the applicant's discharge.

The following is provided for the edification of the Applicant. Normally, to permit relief, an impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety or inequity after a review of Applicant’s case. 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 naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. After a careful review of the Applicant’s record, including the evidence she submitted, the Board determined that the Applicant’s post-service accomplishments did not sufficiently mitigate her service related misconduct. Relief denied.

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 on the propriety and equity of the discharge.

The following if provided for the edification of the Applicant. The NDRB has no authority to provided additional review of this case since Applicant’s discharge occurred more than 15 years ago. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if she desires further review of her case.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A), effective 15 Jun 87 until
10 Jan 89, Article 3630600, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

 B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 92, Failure to Obey an Order or Regulation, if adjudged at a Special or General Court-Martial.
C. 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.

D. 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.

E. 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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