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NAVY | DRB | 2004_Navy | ND04-00849
Original file (ND04-00849.rtf) Auto-classification: Denied



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

ex-ENFN, USN
Docket No. ND04-00849

Applicant’s Request
The application for discharge review was received on 20040427. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Region. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041029. 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)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

 The NDRB did note administrative errors on the original DD Form 214. Block 25, Separation Authority, should read: “NAVMILPERSMAN, Article 1910-140” vice “1910-156, ” and Block 29, Dates of Time Lost During This Period, should read: “TL: None” vice “TL: 16 AUG 99 TO 16 AUG 99, 30 APR 02 TO 30 APR 02.” The Commander, Naval Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “Sirs;
I am respectfully requesting a change in my discharge status. General (under honorable) to Honorable. I am now currently a member in the American Legion Post No. 8 as well as the Veterans of Foreign Wars Post No. 7481, acting post adjutant. I have recently passed my first responder test here in the State of Montana and am pursuing a career in becoming a paramedic by going to Montana State college in Billings College of Technology. by obtaining an Honorable discharge I will be eligible to receive the college fund and use the Montgomery GI Bill. I work part time at a small contract Postal Station here in Fort Smith, MT and full time at the trout shop kitchen under J_ N_, with several job responsibilitys. I also sub teach at one elementary school grade 1-5. I have worked at several other businesses here in town. Seasonally, my goal as well as determination is to have a college degree and hopefully an honorable discharge. I did serve three years 5 months and 24 days. I was 3 days away from signing a reenlistment I had orders in hand. Please find encoled a packet of information regarding an attempt to achieve my goal, copys of letters from past & current employees. Please feel free to contact others for character references
R_ Z_ (telephone number and address deleted) – Friend/Boss
J_ N_ (telephone number and address deleted) – Boss
R_ K_ (telephone number and address deleted) – Boss.
Thank you for your time and considerations in this matter-J_ A_ O_ (Applicant)”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Employment reference, dated February 4, 2003
Character reference, dated January 11, 2003
Character reference, dated January 29, 2003
Examination Profile Information, dated October 2001
Twenty-eight pages from Applicant’s service record
Applicant’s DD Form 214
Letter to United States Senator, dated December 3, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     980831 - 980922  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 980923               Date of Discharge: 020524

 Length of Service (years, months, days):

         Active: 03 08 02
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

 Education Level: 12                        AFQT: 50

 Highest Rate: EN3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*                 Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR (2), BER (3), AFEM

 Days of Unauthorized Absence: 2

*No marks found in service record

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

GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

 Chronological Listing of Significant Service Events :

990724:  NJP for violation of UCMJ, Article 90: Willfully disobeying superior commissioned officer, violation of UCMJ, Article 86: Failure to go to appointed place of duty, violation of UCMJ, Article 123a (3 specs): (1) Making, drawing, or uttering check without sufficient funds in the amount of $140.00 on 990514, (2) Making, drawing, or uttering check without sufficient funds in the amount of $120.00 on 990516, (3) Making, drawing, or uttering check without sufficient funds in the amount of $20.00 on 990516.
         Award: Reprimand in writing, extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
990724:  Retention Warning: Advised of deficiency. You were awarded Commanding Officer’s NJP on 990724 for violation of Article 123a of the UCMJ. You were found guilty of violation of Article 123a, UCMJ for making, drawing, or uttering checks, without sufficient funds. The U.S. Military is one of the few institutions that holds its personnel to a higher standard than the general public; and is the only organization that demands financial responsibility of its personnel. Falsely making, drawing, or uttering checks is not only financially irresponsible, it is also a form of theft. This counseling/warning entry is made to afford you an opportunity to undertake the recommended corrective action. Any failure to adhere to the guidelines cited above, which is reflected in your future performance and/or conduct, will make you eligible for administrative separation action. This counseling/warning entry is based upon known deficiencies or misconduct. If any misconduct, unknown to the Navy, is discovered after this counseling and warning is executed, this letter of counseling and warning is null and void.

990821:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 1700-2045, 990816, violation of UCMJ, Article 92: Failure to obey a lawful written general order or regulation on 990816, to wit: failed to report for extra duty.
         Award: Restriction and extra duty for 30 days. No indication of appeal in the record.
000912:  NJP for violation of UCMJ, Article 91 (2 specs): Disobeying a warrant, noncommissioned, or Petty Officer on 000816, to wit: report to boat deck.
         Award: Forfeiture of $502.80 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
001006:  NJP for violation of UCMJ, Article 92: Dereliction in the performance of duties on 002005, to wit: failed to stand proper post as aft lookout during General Quarters training.
         Award: Restriction for 40 days and extra duty for 20 days. No indication of appeal in the record.
020506:  NJP for violation of UCMJ, Article 92: Dereliction of duty on 0900, 020430, to wit: found sleeping in a empty rack in the 03 Level female berthing, violation of UCMJ, Article 86: Absent from place of duty on 0605-0620, 020430.
         Award: Forfeiture of $734 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.
020510:  Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.
020510:  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

020513:  Psychiatric evaluation: Diagnosed with Occupational problems, R/O adjustment disorder with mixed emotions and conduct.
020520:  Commanding Officer recommended discharge general (under 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 20020524 with a general (under 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: T he Board has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities, as requested. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Relief denied.

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. The Applicant’s service was marred by award of nonjudicial punishment (NJP) on five occasions for violations of Articles 86, 90, 91, 92, and 123a of the UCMJ. 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 Navy Discharge Review Board. 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 following is provided for the edification of the Applicant. 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. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. The Applicant’s evidence of post-service conduct was found not to mitigate her misconduct sufficient to warrant an upgrade to her discharge. Therefore, no relief will be granted.
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 or any other evidence relating to his 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), Change 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - 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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