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

 
ex-FA, USNR
Docket No. ND04-00068

Applicant’s Request

The application for discharge review was received on 20031014.  The Applicant requests the 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040712.  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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Applicant’s issues, as stated on the application:

“1.  I’ve recently applied for a better job, I was denied this job due to my discharge from the navy, when you review my service records you will see that up until the end of my enlistment I was a 4.0 sailor.  I’ve recently got married and have a little girl.  

2.  I need my discharge change so I can better myself and take care of my family, I realized that I did wrong in dishonoring my contract with the navy.  

3.  Also I spent a little bit of time in the brig, and when I had my court martial the judge did not give me a other than honorable discharge but when I returned to NAB Little Creek the Captain of the base had a special board formed and they decided that I should have a other than honorable discharge.  I wish that you will take my discharge into consideration thank you for your time, also I want to attend school and I could not use my G.I. Bill which would help me.  Thank you.”  [Signed by the Applicant]

Documentation

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

Copy of DD Form 214
Copy of DD Form 215

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	None
	Active:  USN 			None

Period of Service Under Review:

Date of Enlistment:  960528		Date of Discharge:  991104

Length of Service (years, months, days):

	Active:    03  01  01
	Inactive:  00  02  22

Age at Entry:  19			Years Contracted:  8

Education Level:  12			AFQT:  40

Highest Rate:  FN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (3)	Behavior:  3.00 (1)		OTA:  3.11

Military Decorations:  None

Unit/Campaign/Service Awards:  Navy Rifle Marksmanship Ribbon

Days of Unauthorized Absence:  90

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events:

960815:	Commenced 36 month of active duty under the Fireman (3Y0) Apprenticeship program. 

980624:	Unauthorized absence 0700, 980624.
 
981008:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 981004 having been an unauthorized absentee since 0730, 980904 from NAVPHIBASE Little Creek, VA.

981020:	Report of Return of Deserter.  Applicant surrendered to military authorities on 981015 (1400) at NAVPHIBASE Little Creek, VA.  Returned to military control 981015 (1400).  Retained onboard for disciplinary action.

981112:	NJP for violation of UCMJ, Article 86: Absent without leave 990904-981015 (41days/S).
	Award: Forfeiture of $519.00 per month for 2 months, restriction to NAB LCRK for 45 days, extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

990608:	Special Court Martial [trial dates 990608]
	Charge I:  violation of the UCMJ, Article 86, Absenting himself from his organization from 990303 until apprehended on or about 990422(49days/A).
	Findings:  to Charge I and specification thereunder, guilty.
	Sentence:  Confinement for 30 days, forfeiture of $500.00 pay per month for 1 month, reduction to E-1.
	CA 990607:  Sentence approved and ordered executed.

981130:	Retention Warning:  Advised of deficiency (NJP held on 981112 for violation of UCMJ Article 86-Unauthorized absence from 980904 until 981015), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

990630:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.

990630:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

990917:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

991021:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.

991026:	Commander, Navy Region, Mid-Atlantic authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19991104 under other than honorable conditions for misconduct due to a pattern of misconduct (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.  The Applicant contends that he is entitled to an upgrade because “until the end of my enlistment, I was a 4.0 Sailor.”  When the service of a member of 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 two episodes of unauthorized absence for a total of 90 days.  One of these episodes was adjudicated at Special Court Martial where the Applicant was sentenced to confinement for 30 days, forfeiture and reduction.  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.

Issues 2 and 3:  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 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 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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