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NAVY | DRB | 2004_Navy | ND04-01289
Original file (ND04-01289.rtf) Auto-classification: Denied


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

ex-SMSA, USN
Docket No. ND04-01289

Applicant’s Request
The application for discharge review was received on 20040810. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record 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 20050107. 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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “I would like to request an upgrade in discharge due to the fact mistakes made, have been rectified in my life and I would like to do some goverment work once I attain my degree.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Application for VA Education Benefits, VA Form 22-1990, dated May 1, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     940808 - 940831  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 940901                        Date of Discharge: 960709

 Length of Service (years, months, days):

         Active: 01 10 09
         Inactive: None

 Age at Entry: 17 (Parental Consent)              Years Contracted: 4

 Education Level: 12                                          AFQT: 44

 Highest Rate: SMSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.07 (3)    Behavior: 2.80 (3)                OTA: 3.07

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

950301:  Counseling: Advised of deficiency (Uniform requirements), notified of corrective actions and assistance available.

950508:  Counseling: Advised of deficiency (Personal behavior and responsibilities), notified of corrective actions and assistance available.

950813:  Counseling: Advised of deficiency (Sexual misconduct/fraternization), notified of corrective actions and assistance available.

951006:  Counseling: Advised of deficiency (Responsibilities), notified of corrective actions and assistance available.

951117:  NJP for violation of UCMJ, Article 86: Absent from duty on 0645, 951113, to wit: the lobby of the Northwoods Atrium to muster for duty turn over, violation of UCMJ Article 92: Derelict in the performance of duty in that she failed to muster at 0645, 951112, had her phone off the hook while in a duty status and was found in her bed at approximately 0700, 951113 and therefore failed to properly turn over her watchstanding duties.
         Award: Restriction and extra duty for 14 days, reduction to E-2. Reduction suspended for 6 months. No indication of appeal in the record.
951212:  NJP for violation of UCMJ, Article 112a: Wrongfully use marijuana on 951107, violation of UCMJ, Article 121: Wrongfully and fraudulently use AT&T telephone calling card between 951010 and 951023.
         Award: Forfeiture of $478 per month for 2 month, restriction for 60 days, extra duty for 45 days, and reduction to E-2. Forfeiture for 1 month, restriction and extra duty suspended for 6 months. No indication of appeal in the record.
960301:  NJP for violation of UCMJ, Article 123a (2 specs): Check, worthless, by dishonorably failing to maintain funds on 960104 for $20.00 and 960109 for $10.00 for the purpose of receiving cash. [Extracted from Commanding Officer’s letter dated 960418.]

951229:  Applicant notified of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by CO’s NJP of 951212 and misconduct due to drug abuse as evidenced by Naval Hospital Care and Treatment Report Log Number 951122-00010.
951229:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27(b), elected to appear before an Administrative Discharge Board.
960305:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense and drug abuse , that the misconduct warranted separation, and recommended a discharge of general (under honorable conditions).

960418:  Commanding Officer recommended discharge with a general (under honorable conditions) by reason of misconduct due to the commission of a serious offense and misconduct due to drug abuse.

960607:  BUPERS directed the Applicant's discharge with a general (under 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 19960709 with a general (under 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: Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question. No such impropriety or inequity is evident during the Applicant’s enlistment. When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. A general discharge is warranted for behavior not sufficiently meritorious to warrant an honorable discharge. T he Applicant’s service was marred by nonjudicial punishment proceedings for violations of UCMJ Article 86, unauthorized absence, Article 92, dereliction of duty, Article 112a, wrongful use of a controlled substance, 121, larceny, and 123a, uttering worthless checks. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy. Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of her characterization of service. Relief is not warranted.
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, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient documentation for the Board to consider. 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. 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 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 documentation to support any claims of post-service accomplishments or any other evidence related to her 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 9, effective
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

 B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

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 “ http://Boards.law.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:

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



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