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NAVY | DRB | 2006_Navy | ND0600705
Original file (ND0600705.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-IT3, USN
Docket No. ND06-00705

Applicant ’s Request
The application for discharge review was received on 2006050 2 . 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 20070301 . 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 .
The NDRB did note administrative error(s) on the original DD Form 214. Block 28, Narrative Reason for Separation, should read: “ MISCONDUCT (SERIOUS OFFENSE) .” The Commander, Navy Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues
Equity: Characterization not warranted by overall service record.

Documentation
In addition to the service and medical record s , the following additional documentation, submitted by the Applicant , was considered:
Voluntary Statement from Applicant , dated April 10, 2006
Voluntary Statement from E_ S_, Jr., dated October 21, 2005
 Applicant ’s DD Form 214 (Member 4)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20001028 - 20010716       COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 20010717              Date of Discharge: 20050623

Length of Service (years, months, days):

          Active: 0 3 11 07
         Inactive: None

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

Age at Entry: 18
Years Contracted: 4
Education Level: 12                                 AFQT: 56

Highest Rate: IT2

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): Good Conduct Medal; National Defense Service Medal; Global War on Terrorism Service Medal

*Not available

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

GENERAL (UNDER HONORABLE CONDITIONS) /MISCONDUCT (SERIOUS OFFENSE), authority: MILPERSMAN, Article 1910-142 (formerly 3630605).
Chronological Listing of Significant Service Events :

050519:  NJP for violation of UCMJ, Article 92 (2 Specs): Failure to obey order or regulation.
 Violation of UCMJ, Article 107 (2 Specs): False official statement.
          Award: Punitive letter of reprimand, f orfeiture of $893.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-4. No indication of appeal in the record .
[Extracted from Commanding Officer’s letter dated 060606.]

050602:  Applicant received Punitive Letter of Reprimand: From April 2004 through March 2005, you engaged in an inappropriate sexual relationship with ITCM (SW/AW) S_, a senior enlisted member, whom you had worked for from April 2004 to May 2004. This behavior seriously impacted command mission, and led to a command investigation. When questioned by CWO4 N_, the assigned command investigating officer for this case on 050329, you denied the allegation with intent to deceive the investigating officer. When questioned by the Executive Officer at Executive Officer’s Investigation (XOI), you again denied allegations with the intent to deceive the Executive Officer.
         It was not until this case reached Captain’s Mast that you finally revealed the truth by admitting to having an inappropriate sexual relationship with ITCM (SW/AW) S_.

050602:  Applicant indicates intent to make statement concerning the Report of Nonjudicial Punishment and to appeal the Punitive Letter of Reprimand.

050603:  Applicant submits statement to Commanding Officer, Naval Computer and Telecommunication Area Master Station Pacific.
050606:  Commanding Officer, Naval Computer and Telecommunication Area Master Station Pacific, directed a general (under honorable conditions) discharge by reason of misconduct due to a commission of a serious offense.
Service Record contains a partial Administrative Discharge package.
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 20050623 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 Board presumed regularity in the co nduct of governmental affairs (E).
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. The Applicant’s service was marred by a nonjudicial punishment proceeding for violations of Articles 92 and 107 of the UCMJ. The record indicates that she engaged in a fraternizing relationship lasting nearly a year, and lied about it on two separate occasions when confronted. The Board determined that this conduct was not “isolated.” 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 a punitive discharge is authorized if adjudged at a special or general court-martial. 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 short of that required for an upgrade of her characterization of service. Relief is not warranted.

In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. Specifically, Applicant alleged that she was wronged by her Commanding Officer resulting in her general discharge. The record, however, contains no evidence of any wrongdoing by the Applicant’s Commanding Officer, or anyone else for that matter, in the discharge process. The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. As such, this Board presumed that Applicant’s discharge was regular in all respects. Relief denied.

The Applicant implies that her discharge was inequitable because another servicemember was punished less harshly for similar misconduct. The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a serious offense, that separation from the Naval service was appropriate, and that a general (under honorable conditions) discharge was warranted. As such, relief is denied.

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 of the propriety and equity of the discharge.

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 or inequity 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 to consider mitigating the misconduct that resulted in the characterization of discharge. 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 11, effective
26 April 2005 until Present, Article 1910-142, 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, and 107, False o fficial s tatement s .

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 Di scharge 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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