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

 
ex-HM2, USN
Docket No. ND03-00871

Applicant’s Request

The application for discharge review was received on 20030416.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20040608.  After a thorough review of the available 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/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I was told by the veterans administration in Newark, New Jersey that because of my discharge that I was ineligible to receive Montgomery GI Bill benefits.  I was told by my attorney Lt D_ G_ that I had earned my GI bill from a prior enlistment.  I want to know am I eligible for the GI Bill, and if so what do I have to do to access it.  I am attending Union County College in Cranford, NJ right now.  My major is liberal arts, I do plan on returning in the Fall of 200Fall of 2003.”

Documentation

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

Applicant’s DD Form 214 (Member 1 and 4 (2))
Department of Veterans Affairs, Enrollment Certification, dated April 4, 2003
Union County College, registration form, dated January 8, 2003 (2)
Letter to Applicant from Union County College, dated November 6, 2002
Department of Veterans Affairs, Application for VA Education Benefits, dated April 4, 2003 (4 pages)
Honorable discharge certificate, dated April 14, 1998
Honorable discharge certificate, dated October 20, 1999
Navy and Marine Corps Achievement Medal certificate, dated March 19, 1999
Applicant’s résumé
Official receipt from Union County College, dated January 8, 2003 (2)
Letter from Applicant, undated
Letter from Applicant, dated January 12, 2004
Letter from Applicant, dated November 21, 2003
Letter to Commanding Officer from Applicant, dated October 28, 2003
Applicant’s DD Form 215 (2 partial)

PART II - SUMMARY OF SERVICE

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

	Active:   USA			850118 - 870413	HON
	Inactive: USNR (DEP)	870414 - 870520	COG
	Active:   USN			870521 - 900517	HON
		   USN			900518 - 980414	HON
		   USN			980415 - 991020	HON

Period of Service Under Review:

Date of Enlistment:  991021		Date of Discharge:  020327

Length of Service (years, months, days):

	Active:    02  05  07
	Inactive:  None

Age at Entry:  35			Years Contracted:  3

Education Level:  14/15		AFQT:  47

Highest Rate:  HM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (3)	Behavior:  2.00 (3)		OTA:  2.62

Military Decorations:  None

Unit/Campaign/Service Awards:  N&MCAM, JMUA, MUC, GCM (4), NFMFR, NDSM, SASM, N&MCOSR

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority:  NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

Chronological Listing of Significant Service Events:

011015:	Confinement order: Applicant detained for the alleged violation of UCMJ, Article 91: Insubordinate conduct towards a petty officer, Article 92: Failure to obey order or regulation, Article 117: Provoking speeches or gestures, Article 134: Stalking.  Applicant found fit for confinement.

020327:	DD Form 214: Applicant discharged under other than honorable conditions in lieu of a trial by court-martial, authority: NAVMILPERSMAN, Article 1910-106

Applicant’s separation package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020327 under other than honorable conditions in lieu of a trial by court-martial (A and B).  In the absence of a discharge package, the Board presumed regularity in the conduct of governmental affairs (C) and, after a thorough review of available records, supporting documents, facts, and circumstances unique to this case, found that the discharge was proper and equitable (D and E).

Issue 1.   The Veterans Administration determines eligibility for post-service benefits not the Navy 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 on the propriety and equity of the discharge.

The Board did note an administrative error on the DD Form 214, in which the Applicant was not given credit for continuous honorable active duty for approximately 12 years (from 21 May 1998 until 20 October 1999).  Accordingly, the Commander, Naval Personnel Command, Millington, TN, has been notified to make the necessary correction to the Applicant’s DD Form 214.   

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted.  The statements submitted by the applicant do not refute the presumption of regularity.  The applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  There is no evidence of impropriety or inequity in the Applicant’s discharge.  Therefore, relief is 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 other evidence related to his discharge 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 29, effective 
11 Jul 2000 until 21 Aug 2002, Article 1910-106 (formerly 3630650), SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B.  A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Articles 92, insubordination, upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-Martial.

C.  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.  

D.  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.

E.  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