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

 ex-ATAA, USN 
Docket No. ND03-00191

Applicant’s Request

The application for discharge review, received 20021114, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions.  The Applicant requested a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031003.  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/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605). 

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

1.	“I am unsure what type of discharge I need.”
2.	“I have a serious back problem due to surgery given to me by the military during active duty and are unable to get disability or medical treatment unless my discharge is upgraded.” 

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

None

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive: USNR (DEP)	980226 - 980831	COG
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  980901		Date of Discharge:  010117

Length of Service (years, months, days):

	Active:    02  03  16
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  80

Highest Rate:  ATAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (2)	Behavior:  2.00 (2)		OTA:  2.83 [Extracted from Evaluation in case file]. 

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

000719:	Executive Officer’s Inquiry for violation of UCMJ, Article 86-Absence without leave; Article 92-Failure to obey an order or regulation.  These charged were due to the fact of his failure to follow his Sick in Quarters (SIQ) orders.  During his SIQ he failed to inform his duty section leader that he was in fact SIQ, missing both duty section muster and watch.  He had left NAS Patuxent River to go to New York to visit his wife.  The command decided to give him a second chance, assign him Extra Military Instruction.  A page 13 entry was made and the charges were dismissed at XOI. [Extracted from CO’s letter dated 010103, comments and recommendation, in case file]. 
 
000816:	Page 13 Counseling/Warning issued.

001219:	NJP for violation of UCMJ, Article 121: Larceny and wrongfully appropriation; violation of UCMJ Article 123: (13 Specifications), Forgery, violation of UCMJ Article 134: (2 Specifications), Mail: taking, opening, secreting, destroying, or stealing; Additional Charge violation of Article 86: Absence without leave.
	Award:  Forfeiture of ½ pay for 2 months (suspended for 6 months), restriction to base for 60 days, reduction to E-2, process for administrative separation.  No indication of appeal in the record [Extracted from CO’s letter dated 010103].

001219:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

001219:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

010103:	Commander, Naval Test Wing Atlantic, 22541 Millstone Road, Unit 10, Patuxent River, MD recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

010109:	Commander, Naval Air Warfare Center Aircraft Division, 22347 Cedar Point Road, Unit 6, Patuxent River, MD authorized discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010117 under other than honorable conditions for misconduct due to commission of a serious offense (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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).

Issue 1 and 2:  The Board has no authority to upgrade a discharge for the sole purpose of obtaining medical benefits as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  There is no requirement or law that grants recharacterization solely on the issue of obtaining medical benefits.  This issue does not serve to provide foundation upon which the Board can grant relief.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.   The Applicant’s service record is marred by award of non-judicial punishment (NJP) for larceny and forgery.  The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service. Relief denied. 

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 the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, a positive employment record and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   

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 additional documentation to support any claims of post-service accomplishments at that time.  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 30, dated 7 Nov 00, effective 30 Aug 00 until 24 Jan 01, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 "afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023