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NAVY | DRB | 2005_Navy | ND0501019
Original file (ND0501019.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-HR, USN
Docket No. ND05-01019

Applicant’s Request
The application for discharge review was received on 20050602. The Applicant requests her 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 designate a representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20051020. After a thorough review of all available 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 characterization of the discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to commission of a serious offense .

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“I respectfully request a change to honorable because I served 7 years on active duty service with no prior disciplinary history or adverse evaluations.
-Review of court martial documents should show that my character witness’ spoke highly of both my work performance & attitude.
-As a civilian, I have not had any other adverse legal discrepancies.”

 Applicant’s Remarks: (Taken from the DD Form 293.)

“I am requesting this upgrade in order to receive both VA and educational benefits. Despite the wrong choice I made that resulted in my confinement & discharge; I would like to pursue every opportunity available to me to enrich my life as well as those around me. The events leading to my discharge & the time that followed have done much in showing me the value of integrity. I would like to opportunity to grow beyond my wrong choice”.

 Documentation
The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19930205 - 19930524      COG
          Active: USN      19930525 - 19960710      HON

 Period of Service Under Review :
Date of Enlistment: 19960711             Date of Discharge: 20010427

 Length of Service (years, months, days):

         Active: 04 09 17 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 00 days
         Confinement:              73 days

 Age at Entry: 22

 Years Contracted: 5

 Education Level: 12                                 AFQT: 65

 Highest Rate: HM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NA*                                    Behavior: NA*             OTA: NA*

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Second Navy Good Conduct Award for the period ending 99MAY21, National Defense Service Medal; Navy & Marine Corps Achievement Medal
* Not Available


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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

960711:  Reenlisted this date for a term of 5 years.

001108:  General Court-Martial.
         Charge I: Violation of the UCMJ, Article 121.
         Specification 1: Larceny of U.S. Currency, $200.00
         Specification 2: Larceny of U.S. Currency, $600.00
         Specification 3: Larceny of U.S. Currency, $168.00
         Specification 4: Larceny of Gateway computer worth $1918.00
         Charge II: Violation of the UCMJ, Article 123.
         Specification 1: Forgery of checks
         Specification 2: With intent to defraud, utter falsely made checks
          Finding: Guilty except to the word “larceny” substituting therefore the words “wrongful appropriation”. To the excepted words, not guilty; to the specifications as substituted, guilty.
         Sentence: Forfeiture of $600.00 pay per month for 3 months, confinement for 90 days, reduced to E-1.
         CA action: Not found in service record.
        
010214:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to commission of a serious offense.
010214:  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.
010215:  Applicant waived Administrative Discharge Board.
010302:  Commanding Officer, Transient Personnel Unit, Norfolk, Virginia recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense. Commanding Officer’s comments: “HR M_’s (Applicant) behavior was a clear violation of the Navy’s Core Values of Honor, Courage, and Commitment. Her actions not only negatively impacted her individually but also affected the Navy and her family. She has no potential for future service. I most strongly recommend that HR M_ (Applicant) be separated from the Navy with an Other than Honorable discharge.

 010307:  Chief of Naval Personnel recommended to Assistant Secretary of the Navy (Manpower and Reserve Affairs), Applicant’s discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

010416:  Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

Service Record was missing evaluations from the period of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20010427 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of under other than honorable conditions. After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

To be legally sufficient, a finding of misconduct due to the commission of a serious offense requires only a showing, by a preponderance of the evidence, that misconduct which would warrant a punitive discharge if tried by special or general court-martial, has occurred. An under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct outweigh the positive aspects of the member's military record. A general court martial marred the Applicant’s service for violations of UCMJ Article 121 (larceny/wrongful appropriation, 4 specifications) and Article 123 (forgery). Each violation of Article 121 and 123 is defined as the commission of a serious offense, the misconduct for which the Applicant was discharged. Applicable regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment. Furthermore, there are circumstances where conduct or performance of duty reflected by a single adverse incident might form the basis of characterization for a Sailor’s overall service. Separation under these conditions generally results in an under other than honorable characterization. Relief is not warranted.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization based 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 purpose of enhancing medical, employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. This issue is with out merit, relief denied.

There is no law or regulation, which provides that an unfavorable discharge may be upgraded, as a result of the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized 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 has not provided post service documentation for the Board’s consideration.

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 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 121 (larceny/wrongful appropriation) and Article 123 (forgery).

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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