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NAVY | DRB | 2006_Navy | ND0600281
Original file (ND0600281.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-BMSN, USN
Docket No. ND06-00281

Applicant ’s Request
The application for discharge review was received on 20051122. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). 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 20061019 . 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 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 would like to comment on why I committed the act that led to my other than honorable discharge . At the time I was suffering from depression and was currently on Medication for it while under a great amount of stress, which has been documented in my service record. I am only asking for a general upgrade for my discharge so that I might be able to secure descent work in my area. Even though I had put almost 7 yrs in the service it has been very difficult and frustrating not finding work. I am even In the process of submitting a letter to congressman B_ J_ to see if he might be able to offer any assistance to me. I believe this is the only hope that have, I am not even able to draw unemployment in my area. It seems that my fate is in your hands.”
Documentation
Only the service and medical records were reviewed. 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)     19970723 - 19980125      COG
         Active: USN      19980126 - 20020114      HON
Period of Service Under Review :
Date of Enlistment: 20021115             Date of Discharge: 20041222

 Length of Service (years, months, days):

          Active: 02 01 08
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              None
Age at Entry: 24
Years Contracted: 2 (4-month extension)

Education Level: 12                                 AFQT: 36
Highest Rate: BM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.0 (2)                       Behavior: 3.0 ( 2)                 OTA: 3 .29
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Sea Service Deployment Ribbon(8), Overseas Service Ribbon(8), National Defense Service Medal, Humanitarian Service Medal, Good Conduct Medal, Battle “E”, Meritorious Unit Commendation


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 :

021115 :  Reenlisted this date for a term of 2 years.
040826 :  NJP for violation of UCMJ, Article 86: Absence without leave.
Violation of UCMJ, Article 121 : Larceny .
          Award: Forfeiture of $ 55 0 per month for 2 month s , restriction and extra duty for 45 days, reduction to E- 3 . No indication of appeal in the record.

 041104 :  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable by reason of misconduct- commission of a serious offense.

041104 :  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.

041105 :  Commanding Officer, USS FRANK CABLE (AS 40) , recommended discharge under other than honorable conditions by reason of misconduct - commission of a serious offense. Commanding Officer’s comments: “ Enclosure (2) supports Boatswain’s Mate Seaman T_( Applicant )’s discharge. BMSN T_ stole thousands of dollars from one of his shipmates. His personal behavior is incompatible with good order and discipline and he does not have potential for further Naval service. I recommend that BMSN T_ be separated with an Other than Honorable Discharge ”
041109 :  COMSUBGRU SEVEN directed the Applicant 's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20041222 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 records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

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 nonjudicial punishment proceedings for violations of Articles 86 and 121 of the UCMJ. Review of the Commanding Officer’s comments on 20041105 shows the Applicant’s violations of Article 121 of the UCMJ included stealing “thousands of dollars” from a shipmate. The Applicant’s violation of Article 121 is the commission of a serious offense, punishable by punitive discharge, if awarded as part of the sentence upon conviction at 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 Applicant implies that his discharge is inequitable because he was suffering from depression, on medication and under stress. While he may feel that stress and medical problems were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Relief denied.

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 any 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. 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), re-issued October 2002, effective 22 Aug 02 until 25 April 2005, 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.

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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