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NAVY | DRB | 2005_Navy | ND0501329
Original file (ND0501329.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-YN3, USNR(TAR)
Docket No. ND05-01329

Applicant’s Request
The application for discharge review was received on 20050808. The Applicant requests the Discharge 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 20060406. 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) 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 was the Awards Guard/FITREP cord for Commander, Naval Reserve Intelligence Command and due to NJP RIR/Discharged w/10 yrs of service to this country and given an Admin Discharge and lost my G.I. Bill I would like an upgrade of the discharge and to have my GI Bill re-instated. I believe I have earned this and I contributed to this fund in hopes of continuing my education after separation. Since I was separated I have struggled with dead end jobs without the chance to obtain higher education.”

 Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Letter from J_ E. S_, Member of Congress, dtd July 21, 2005
Letter from W. D_ P_, Executive Director, Board for Correction of Naval Records, dtd July 11, 2005
Character Reference ltr from M. W_, dtd September 7, 2005
Character Reference ltr from C_ S_, Program Coordinator, Goodwill Industries, dtd August 26, 2005
Letter from Department of Veterans Affairs, dtd March 8, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR   19870424 - 19880202      To Active Duty
         Active: USN      19880203 - 19970501      HON

 Period of Service Under Review :
Date of Enlistment: 19970502             Date of Discharge: 19981222

 Length of Service (years, months, days):

         Active: 01 07 21
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              None

 Age at Entry: 28

 Years Contracted: 5

 Education Level: 12                                 AFQT: 37

 Highest Rate: YN2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.0 (1)                       Behavior: 2.0 (1)                 OTA: 2.71

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Flag Letter of Commendation (2), Good Conduct Medal (2), Armed Forces Reserve Medal, Navy Achievement Medal, Reserve Sea Service Ribbon, Sea Service Deployment Ribbon, Humanitarian Service Medal (2), Battle “E” Ribbon (2), Rifle Marksmanship Ribbon, Pistol Marksmanship Ribbon


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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MILPERSMAN, Article 1910-142.
Chronological Listing of Significant Service Events :

970502:  Reenlisted this date for a term of 5 years.
980904:  Preliminary inquiry into allegations of improper activities relating to requests for funds from the Navy and Marine Corps Relief Society.

981112:  NJP for violation of UCMJ, Article 92: (Failure to obey other lawful order).
 Violation of UCMJ, Article 107: (False official statements).
Violation of UCMJ, Article 134: (Soliciting another to commit an offense).
         Date offense: 12 March - September 1998.
         Award: Oral admonition, restriction for 6 months (suspended for 6 months), forfeiture of one-half month’s pay for two months (suspended for 6 months), reduction to E-4. No indication of appeal in the record.
981209:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct – commission of a serious offense.

981209:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
981208:  Commanding Officer’s letter requesting Officer in Charge to separate Applicant with a general discharge by reason of misconduct - commission of a serious offense.
990106:  Commanding Officer, Naval Air Station Joint Reserve Base, Fort Worth, TX discharged Applicant with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense. Commanding Officer’s comments: “As per enclosure (3), member has shown complete disregard for authority and his behavior disrupted the morale and integrity of his department. Petty Officer H_(Applicant) was discharged with a General discharge as per the request of Commander, Naval Reserve Intelligence Command.”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19981222 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of general (under honorable conditions). 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).

The Applicant requests an upgrade to his discharge have his GI Bill re-instated, since
he earned this benefit by contributing to this fund. The NDRB advises the Applicant that 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.

The NDRB advises the Applicant, 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 when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. One nonjudicial punishment proceeding for violations of Article 92 (Failure to obey a lawful order), Article 107 (False official statement), and Article 134 (Soliciting another to commit an offense) marred the Applicant’s service. The NDRB advises the Applicant that certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline. Violations of Article 92 and 107 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 is not warranted.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 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. As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider. 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 additional evidence related to this discharge. 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. 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 92 (Failure to obey a lawful order) and Article 107 (False official statement).

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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