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NAVY | DRB | 2004_Navy | ND04-00459
Original file (ND04-00459.rtf) Auto-classification: Denied


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

ex-SN, USN
Docket No. ND04-00459

Applicant’s Request
The application for discharge review was received on 20040121. 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 20041001. 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)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.




PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

 1. “To Whom It May Concern:

I, L_ L_ C_ ( Applicant ) am requesting a review of my military record to obtain an Honorable Discharge versus a General, Under Honorable Discharge to obtain my education benefits from the Veterans Affairs Office. While serving in the United States Navy, I did participate and contribute to the Montgomery G.I. Bill program. With less than a year of obligation left to the United States Navy, I obtained financial debt due to my failing marriage and estranged relationship with my then husband A_ D_ H_. I did request financial counseling from my command, but at the time due to the shortage of personnel, duty permitting I was unable to attend any type of counseling. I paid my debt back to the financial institutions involved and served a 60-day restriction to the Service Pier prior to my discharge from the US Navy. I am now a full time personnel administration for Brooke Army Medical Center located at Fort Sam Houston, Texas supporting our troops during Operation Iraqi Freedom, Operation Noble Eagle, and Operation Enduring Freedom. I work very closely with the returning wounded soldiers on the Burn Unit as well as their families. I have recently enrolled in San Antonio College seeking 60 credit hours towards a LVN at the University of Health Science Center at San Antonio, Texas. I am requesting that my records be reviewed with consideration of time in service, punishment restriction served, and present circumstances. My plea and request from General, under Honorable to Honorable conditions is to help me further my education with hopes to serve and give back to the Military community while working closely with the soldiers and families and obtaining the appropriate education and training while working at Brooke Army Medical Center - ISR Burn Unit.

Thank you for your time and consideration, and please feel free to contact me if you need further information.

Sincerely,

L_ L_ C_ ( Applicant ).”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: Unknown
         Active: None

 Period of Service Under Review :
Date of Enlistment: 940613               Date of Discharge: 970701

 Length of Service (years, months, days):

         Active: 03 00 19
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: Unknown

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 3.80 (1)    Behavior: 3.80 (1)                OTA: 3 .80

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, Letter of Commendation

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.

 Chronological Listing of Significant Service Events :

970321:  NJP for violation of UCMJ, Article 123a: Wrongfully and unlawfully make and utter to the Navy Lodge on 970126 in the amount of $44.00, to wit: payment of a room bill, violation of UCMJ, Article 134 (15 specs): (1) Make and utter to the Navy Exchange on 961129, a certain check, in the amount of $174.49 for payment of purchase, and did thereafter dishonorably fail to maintain sufficient funds for payment of such check in full upon its presentation for payment, (2) Make and utter to the Navy Exchange on 961204, a certain check, in the amount of $136.09 for payment of purchase, and did thereafter dishonorably fail to maintain sufficient funds for payment of such check in full upon its presentation for payment, (3) Make and utter to the Navy Exchange on 961207, a certain check, in the amount of $130.00 for payment of purchase, and did thereafter dishonorably fail to maintain sufficient funds for payment of such check in full upon its presentation for payment, (4) Make and utter to the Navy Exchange on 961210, a certain check, in the amount of $69.95 for payment of purchase, and did thereafter dishonorably fail to maintain sufficient funds for payment of such check in full upon its presentation for payment, (5) Make and utter to the Navy Exchange on 961212, a certain check, in the amount of $154.08 for payment of purchase, and did thereafter dishonorably fail to maintain sufficient funds for payment of such check in full upon its presentation for payment, (6) Make and utter to the Navy Exchange on 961213, a certain check, in the amount of $150.00 for payment of purchase, and did thereafter dishonorably fail to maintain sufficient funds for payment of such check in full upon its presentation for payment, (7) Make and utter to the Navy Exchange on 961214, a certain check, in the amount of $13.76 for payment of purchase, and did thereafter dishonorably fail to maintain sufficient funds for payment of such check in full upon its presentation for payment, (8) Make and utter to the Navy Exchange on 961214, a certain check, in the amount of $278.75 for payment of purchase, and did thereafter dishonorably fail to maintain sufficient funds for payment of such check in full upon its presentation for payment, (9) Make and utter to the Navy Exchange on 961214, a certain check, in the amount of $44.33 for payment of purchase, and did thereafter dishonorably fail to maintain sufficient funds for payment of such check in full upon its presentation for payment, (10) Make and utter to the Navy Exchange on 961215, a certain check, in the amount of $349.64 for payment of purchase, and did thereafter dishonorably fail to maintain sufficient funds for payment of such check in full upon its presentation for payment, (11) Make and utter to the Navy Exchange 961216, a certain check, in the amount of $23.85 for payment of purchase, and did thereafter dishonorably fail to maintain sufficient funds for payment of such check in full upon its presentation for payment, (12) Make and utter to the Navy Exchange on 961216, a certain check, in the amount of $40.97 for payment of purchase, and did thereafter dishonorably fail to maintain sufficient funds for payment of such check in full upon its presentation for payment, (13) Make and utter to the Navy Exchange on 961217, a certain check, in the amount of $65.00 for payment of purchase, and did thereafter dishonorably fail to maintain sufficient funds for payment of such check in full upon its presentation for payment, (14) Dishonorably fail to pay sum of $1,674.91 on 970205 for payment of a past due obligation and payment of purchases to the Navy Exchange between 961214 and 970126, (15) Wrongfully and unlawfully subscribe under lawful oat a false statement in substance as follows: An agreement that the Seaman would write a check to the Navy Lodge to hold until she comes back and pay in cash $44.00 for the exchange of the check, which statement she did not believe to be true on 970214.
         Award: Restriction for 60 days. No indication of appeal in the record.
970610:  Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.
970611 :  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.
970707:  Commanding Officer directed discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense. Commanding Officer’s comments (verbatim): SN H_ (Applicant) was separated on 1 July 1997, by reason of misconduct due to commission of serious offenses. Although these offenses are serious and warrant separation from the naval service, I did not think she should be discharged with an Other Than Honorable Discharge. I have considered SN H_’s (Applicant’s) excellent work performance and believe this factor alone weighed in favor of a General Discharge. Therefore, she was discharged from the naval service with a characterization of General, under honorable conditions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970701 with a general (under honorable conditions) for misconduct due to the 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. A characterization of service of under honorable conditions (general) 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. T he Applicant’s service was marred by award of nonjudicial punishment (NJP) on one occasion for the commission of several serious offenses. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. An upgrade to honorable is inappropriate. Relief denied.

The Veterans Administration determines eligibility for post-service benefits, not the NDRB. 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.

The Applicant’s discharge characterization accurately reflects her service to her country. The Applicant is reminded that she remains eligible for a personal appearance hearing, The discharge was proper and equitable. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety occurred during the Applicant’s enlistment. Additionally, 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. E vidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and evidence of a substance free lifestyle, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct. The Applicant’s evidence of post-service conduct was found not to mitigate her misconduct sufficient to warrant an upgrade to her discharge.

provided an application is received, at the NDRB, within 15 years from the date of her 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 14, effective
03 Oct 96 until 971212, Article 3630605, 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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