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NAVY | DRB | 2005_Navy | ND0501340
Original file (ND0501340.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-HN, USN, Docket No. ND05-01340

Applicant’s Request
The application for discharge review was received on 20050811. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable or general (under honorable conditions). The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Region. The Applicant did not designate a representative on the DD Form 293. Subsequent to the submission of DD Form 293, the Applicant obtained representation from the American Legion.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20060927. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or in the inequity at the time of discharge. However, after a review of the Applicant’s post-service conduct and accomplishments, the Board determined that the Applicant’s discharge was inequitable. The Board ’ s vote was 3-2 that the character of the discharge shall change, but by unanimous vote, the narrative reason for discharge shall not change. The discharge shall change to: GENERAL (UNDER HONORABLE C ONDITIONS) / MISCONDUCT, authority: MILPERSMAN 1910-142, Separation Code “JKQ. ”






PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 The following issue , superseding the issues listed on DD Form 293, was submitted by the Applicant and her representative at the time of the hearing.

“Equity Issue: Pursuant to 10 USC 874 (b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174D, Part IV, Paragraph 403 m (7), we request, on behalf of this former member, the Board’s clemency relief with an up-grade of her characterization of service on the basis of her post-service conduct.
 ________________________________________________________________                                    
In accordance with Title 32, CFR, section 724.116 and SECNVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue.

Essentially, as noted on DD Form 293, this Applicant is requesting that her discharge be upgraded, as it does not represent her true character. She has submitted 51 pages of additional documents attesting to her service and post-service activities for consideration. This Applicant states that an upgrade is warranted as she was under psychological pressure by her ex-husband to commit these offenses.

The SR shows that the Applicant earned Overseas Service Ribbon 2, 2nd Good Conduct 00Jul03, National Defense Service Medal, Expert Pistol Shot Medal, Meritorious Unit Commendation, and Navy Rifle Marksmanship Ribbon. The SR shows that this Applicant submitted an AGREEMENT FOR DISPOSITION OF OFFENSES IN THE CASE OF HOSPITALMAN THIRD CLASS H_ L. C_ US NAVY on 010122 for VUCMJ Article 80, VUCMJ Article 92, and VUCMJ Article 121. On 010131, she was awarded NJP for VUCMJ Article 80, VUCMJ Article 92 and VUCMJ Article 121. After serving for 2 years, 3 months and 11 days, this Applicant was Under Other Than Honorable Conditions discharged and separated for misconduct authorized by MILPERSMAN 3630600.

The American Legion’s express purpose in providing this statement, and any other submittals or opinions of record, is to aid the applicant in resolving any improprieties or inequities in the character and basis for discharge. Moreover, we rest assured that the Naval Discharge Review Board’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724; SECNAVINST 5420.174C, enclosure (1).

This case is now respectfully submitted to the Board for deliberation and disposition.”


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Ltr from H_ S_ (AKA C_) (Applicant), dtd March 05, 2001
Ltr from H_ S_ (AKA HN C_) (Applicant), undated
Character Reference ltr from J_ M_, undated
Character Reference ltr from S_ G. S_ & K_ D. S_, undated
Character Reference ltr from S_ R_, M.D., Ohio Plastic Surgeons, INC., undated
Character Reference ltr from K_ F-C_, Clinical Skin Care Specialist, undated
Ltr from Commanding Officer, U.S. Naval Hospital Rota, Spain, May 11, 2000 (2)
Application for Correction of Military Record, DD Form 149, dtd August 03, 2005
Transcript from American School of Technology, dtd October 9, 2003
National Technical Honor Society certificate, dtd May 15, 2006
ECPI web-transcript, retrieved September 26, 2006 (2 pgs)
Ltr from ET2(SW) U_, Applicant’s husband, undated, unsigned
Email printout of letter from Applicant’s mother, dtd September 25, 2006
Email printout of letter from S_ S_, Applicant’s mother, dtd September 26, 2006
 Email printout of letter from M_ W_, Applicant’s sister, September 25, 2006

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19950217 – 19950320      COG
         Active: USN                        19950321 – 19981217      HON

 Period of Service Under Review :
Date of Enlistment: 19981218             Date of Discharge: 20010328

 Length of Service (years, months, days):

         Active: 02 03 11
         Inactive: None

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

 Age at Entry: 23

 Years Contracted: 3

 Education Level: 12                                 AFQT: 63

 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): Overseas Service Ribbon 2, 2 nd Good Conduct 00Jul03, National Defense Service Medal, Expert Pistol Shot Medal, Meritorious Unit Commendation, Navy Rifle Marksmanship Ribbon
* 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 :

981218:  Reenlisted this date for a term of 3 years.

010122:  Applicant submits AGREEMENT FOR DISPOSITION OF OFFENSES IN THE CASE OF HOSPITALMAN THIRD CLASS H_ L. C_ (Applicant) U.S. NAVY. Applicant agrees to plead guilty at non-judicial punishment as follows: Charge I: Violation of Article 80, UCMJ, Guilty, Of the specification thereunder, Guilty; Charge II: Violation of Article 92, UCMJ, Guilty, Of the specification thereunder, Guilty; Charge III: Violation of Article 121, UCMJ, Guilty, Of the specification thereunder, Guilty. Applicant acknowledges understanding that she could be processed for administrative separation from the U.S. Navy for misconduct. Applicant agrees to waive her right to an administrative discharge board and that her waiver of an administrative discharge board could result in administrative separation from the U.S. Navy and that the discharge could be characterized as under Other Than Honorable Conditions.
010131:  NJP for violation of UCMJ, Article 80:
          Specification: In that Hospitalman Third Class H_ L. C_ (Applicant), U.S. Navy, U.S. Naval Hospital Rota, Spain, while on active duty, did, at Rota, Spain, on or about 15 November 2000, attempt to steal about $451.51 , military property of the United States
Violation of UCMJ Article 92: Dereliction of duty
          Specification: In that Hospitalman Third Class H_ L. C_ (Applicant), U. S. Naval Hospital Rota, Spain, while on active duty, who knew of her duties in regard to the proper use of her Nations Bank Government Card, at Washington, D.C., Rota, Spain, and London, England, as well as their surrounding communities, between about July 2000 and November 2000, was derelict in the performance of those duties in that she willfully failed to use her Nations Bank Government Card for official travel related expenses only, as it was her duty to do.
 Violation of UCMJ 121: Larceny
Specification: In that Hospitalman Third Class H_ L. C_, U.S. Navy, U. S. Naval Hospital Rota, Spain, while on active duty, did, at Rota, Spain, on or about 28 August 2000, steal about $3,088.00, military property, the property of the United States.
         Award: Extra duty for 45 days, reduction to E-3. No indication of appeal in the record.

010201:  Applicant notified of intended recommendation for discharge by reason of misconduct due to the commission of a serious offense with the least favorable characterization of service as under other than honorable conditions.

010201:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.
010213:  Commanding Officer, U.S. Naval Hospital, Rota, Spain, recommended to Commander, Fleet Air Mediterranean that the Applicant be discharged under other than honorable conditions by reason of misconduct due to commission of a serious offense. Commanding Officer’s comments: “On 31 January 2001, Hospitalman H_ L. C_ (Applicant) was the subject of captain’s Mast for UCMJ Articles 80 (Attempted Larceny), 92 (Dereliction of Duty), and 121 (Larceny). HN C_ (Applicant) pled guilty to being derelict in her duties in regard to the in proper use of her NationsBank Government Card while on travel in Washington, D.C., and London, and while stationed in Rota, Spain. She also pled guilty to attempting to defrauds the government of $450.00 by submitting false lodging receipts with her travel claims last fall. Additionally, she pled guilty to defrauding the government of over $3,000.00 through similar means for a separate travel claim last summer.”

010216:  Commander, Fleet Air Mediterranean granted the Commanding Officer, U. S. Naval Hospital, Rota, Spain, with the authority to discharge the Applicant by reason of misconduct due to commission of a serious offense with a characterization of service as under other than honorable conditions

030424:  NDRB documentary record review Docket Number ND02-01080 conducted. Determination: discharge proper and equitable; relief not warranted.
Service Record was missing elements of the Summary of Service .

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20010328 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 the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper but not equitable (C and D).

The Applicant’s testimony before the Board included statements by the Applicant concerning her marital situation at the time of her enlistment. The Applicant alleged that this relationship was abusive and precipitated her discharge under other than honorable conditions. The Applicant provided statements from her mother and her sister to substantiate her claims. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned there was no impropriety or inequity in the characterization of the Applicant's service or the assigned reason for discharge, at the time of discharge. However, after consideration of the Applicant's post-service accomplishments, the Board determined that partial relief is warranted based on equitable grounds. The Board found that the Applicant’s post-service actions demonstrate that her misconduct was isolated and precipitated by the stressful marital situation. However, the Board found that the Applicant’s post-service conduct does not mitigate her misconduct while on active duty sufficiently to warrant full relief in the form of an honorable discharge. Therefore, partial relief is granted.

The following is provided for the edification of the Applicant. The Applicant has exhausted her opportunities for review by the NDRB. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if she desires further review of her case.


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 92, failure to obey an order/regulation or Article 121, larceny.

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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