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NAVY | DRB | 2006_Navy | ND0600231
Original file (ND0600231.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-SA, USNR
Docket No. ND06-00231

Applicant’s Request
The application for discharge review was received on 20051118 . 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 20061130 . 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 ization 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 attached document/letter:

“ My discharge was improper because I was on my first sixth month deployment over in Germany, with a lawyer that I did not trust. He was told to report to me. I wasn’t given the time to gather my information. I was just told by the lawyer to take the 30 days in bridge and be discharged. I wasn’t properly given the correct advise simple because I was far away from home on the other side of the world trying to what was right for me and my only son. I was taken advantage of and ill-represented at my time of need. My ex-husband T_ M_, who was not the father of my son S_ F_, Divorced: 8-19-1999 he didn’t legally have the right to receive any monies, bah, baq or any other money in the military issued to him after I left on December 1, 1997. I chose to join the Navy in May ’98. WE had not spoken to each other because of him being an alcoholic and having financial abuse problems. I was on my sixth month deployment away from home, when the lawyer contacted me take 30 days and be discharge, I felt like I was treated unfairly by the military. I chose to put my son on my military application. I went into the military for a change of life, venture, career help, and to send money home to my mother for watching my son. T_ M_ had no plan on sending us money from (Twenty-nine Palms/Marine base) bah, or baq. If this was wrong then forgive my studious life making choices , I was trying to be responsible for my son and myself. Before, I went in the military I had to give to my mother partial rights of my son for three years. P.S. In regards to the debt I myself have repaid it in full. ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (member 1)
Applicant’s DD Form 214 (member 4)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19980415              Date of Discharge: 20000118

Length of Service (years, months, days):

          Active: 0 1 0 8 00
         Inactive: 00 01 04

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

Age at Entry: 2 1
Years Contracted: 4

Education Level: 12                                 AFQT: 32

Highest Rate: SN

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): None.

* Not Available


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

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

980519 :  Commenced active duty for a period of 36 months.
991202 :  Summary Court-Martial.
          Charge: violation of the UCMJ, Article 92 : Failure to obey order; violation of the UCMJ, Article 107: False official statement; violation of the UCMJ, Article 121 : Larceny.
         Finding: to Charge and the specification thereunder, guilty.
          Sentence: Reduced to E-2, confinement to naval brig for 30 days.
         
991202 :  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct commission of a serious offense as evidenced punishments under the UCMJ.

991202 :  Applicant advised of rights (No selection were made) (page 1 only ) .

991213 :  Commanding Officer, USS WHIDBEY ISLAND recommended discharge under other than honorable conditions by reason of misconduct commission of a serious offense as evidence punishments under the UCMJ 1910-142. Commanding Officer’s comments : “ Despite counseling and warning, SA F_ (Applicant) continues to commit misconduct as noted above. SA F_ (Applicant) is either incapable, or simply unwilling, to adhere to the rules and regulations of this command and the U.S. Navy, furthermore she is unwilling to conduct herself in a manner conducive to good order and discipline. I strongly recommend that SA F_ (Applicant) be separated from the naval services by reason of commission of a serious offense, and that her characterization of service by under other than honorable. ”
991214 :  GCMCA, COMFAIRMED NAPLES, IT directed the Applicant's discharge under other than honorable conditions by reason of misconduct commission of a serious offense.

000118:  Applicant's discharge under other than honorable conditions by reason of misconduct commission of a serious offense.
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 20000118 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization under other than 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 Board presumed regularity in the conduct of governmental affairs (E).

The Applicant claims she was treated unfairly by the Military. 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. An under other than honorable conditions 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. The Applicant’s service was marred by one summary Court-Martial for violations of Articles 92 (Failure to obey order or regulation), 107 (False official statement) and Article 121 (Larceny) of the UCMJ. 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 and falls far short of that required for an upgrade of her characterization of service. Relief is not warranted.

The Applicant claims she was not given correct advice and was ill-represented during her time of need. There is credible evidence in the record that shows the Applicant violated Articles 92, 107 and 121. The Board found no indication in the record that the Applicant was inequitably or improperly treated. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support her issue. The Applicant did not provide any record that could support her claim that she was unfairly treated by counsel or that she should not be held accountable for her actions. 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 s 92 (Failure to obey order or regulation) , 107 (False Official statement) and 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 .
E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction . You should read Enclosure (5) of the Instruction 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 Instruction 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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