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NAVY | DRB | 2005_Navy | ND0500598
Original file (ND0500598.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-QMSA, USNR
Docket No. ND05-00598

Applicant’s Request
The application for discharge review was received on 20050222. 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 20050727. 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 1910 - 142 (formerly 3630605).





PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“This review of discharge form is being submitted in the “hopes” of up-grading my discharge from (general under honorable) to “Honorable”. In our nation’s time of need, I am hoping to serve and sacrifice for the country I love. Please consider my request and know that I will serve my country with courage & honor as I hope to re-enter the military & take advantage of educational benefits

THANK YOU
S____ D. R___ SR.
[signed]”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Employment Recommendation Letter dtd February 7, 2005
Employment Verification Letter dtd February 17, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     940927 - 941227  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 941228               Date of Discharge: 980525

 Length of Service (years, months, days):

         Active: 03 04 28
         Inactive: None

 Age at Entry: 20                          Years Contracted: 3 (12 months extension)

 Education Level: 12                        AFQT: 32

 Highest Rate: QM3

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: NA*                  Behavior: NA*             OTA: NA*

Military Decorations: None

 Unit/Campaign/Service Awards: National Defense Service Medal, Sea Service Deployment Ribbon, Armed Forces Expeditionary Medal, Flag Letter of Commendation

 Days of Unauthorized Absence: None

*Not available

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

980506:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 107: (2 Specs), Spec 1: On or about 961031, falsely signing a Dependency Application/Record of Emergency Data; Spec 2: On or about 961031, falsely signing a Basic Allowance for Quarters and Variable Housing Allowance certification form. Charge II: violation of the UCMJ, Article 121: From on or about 9610 to 9709, steal $8,400.00 from the U.S. Government. Charge III: violation of the UCMJ, Article 132: (2 Specs), on or about 961031 commit fraud against the U.S. Government. Sentence: Confinement for 15 days, reduced to E-2. 980508 CA action: Sentence approved, ordered and executed.

980512:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service of general (under honorable conditions) by reason of misconduct due to the commission of a serious offense as evidenced by the Applicant’s summary court-martial of 980506.
980512:  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.
980520:  Commanding Officer, USS KITTY HAWK, advised CNP that Applicant’s discharge was directed with a characterization of general (under honorable conditions) by reason of misconduct due to the commission of a serious offense evidenced by summary court-martial of 980506. Commanding Officer’s comments: “I have administratively discharged QMSA R___ from the naval service for misconduct due to commission of a serious offense. QMSA R___ falsely claimed a marriage that did not exist, thus obtaining allowances he was not entitled to. He was punished at summary court-martial for this misconduct. This type of behavior clearly calls QMSA R___’ integrity into question and his ability to effectively function within the naval service. He has since married this person and they are currently expecting their first child together. In view of his above-average performance and current family situation, I believe that a General discharge is the most appropriate. Accordingly, I have directed QMSA R___’ discharge be characterized as General (under Honorable conditions).”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980525 general (under honorable conditions) for misconduct due to commission of a serious offense (A). 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 (B and C).

The Applicant requests his general (under honorable conditions) discharge be upgraded to Honorable. A discharge with a characterization of general (under honorable conditions) is warranted when 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: A Special Court Martial conviction for violations of:

•         UCMJ, Article 107: (2 Specs):
o        Spec 1: falsely signing a Dependency Application/Record of Emergency Data
o        Spec 2: falsely signing a Basic Allowance for Quarters and Variable Housing Allowance certification
•         UCMJ, Article 121: stealing $8,400.00 from the U.S. Government
•         UCMJ, Article 132: (2 Specs): committing fraud against the U.S. Government.

Violations of Articles 107, 121, and 132 are considered serious offenses and typically warrant a punitive discharge if adjudged at a special or general court-martial. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief on this basis is denied.

The Applicant states he wishes to re-enlist and take advantage of educational benefits.
The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces. NDRB is not authorized to change a reenlistment code. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

The Veterans Administration determines eligibility for post-service benefits not the Naval 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. Relief denied.
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 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 97 until 29 March 2000, Article 1910-142 [formerly 3630605]. SEPARATION 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 V, Para 502, Propriety .

 C. 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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