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

ex-TMSN, USN
Docket No. ND04-00723

Applicant’s Request

The application for discharge review was received on 20040412.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance discharge review before a traveling panel closest to Atlanta, GA.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Board first conducts a documentary record review prior to any personal appearance hearing and also advised that the Board does not travel; all hearings are held in the Washington, D. C. area.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041008.  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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “My discharge was inequitable because it was on a “history of misconduct.”  After attending boot camp and “A” school, I reported to my first duty station USS Holland As 32.  After being on the ship less than one year I befriended a young lady who was being discharged for Bad conduct and who had continually been on restriction awaiting discharge.  She was taken off restriction and we began hanging out.  While I was on duty the Quarter Deck (4am-8am).  My roommates let the young lady into the apartment, the following morning, She left and went to her home town.  I was then interrogated by the MA’s about harboring a fugitive, accessory.  They contacted her, made a deal and I went to mast.  My Captain asked me to explain my actions/reactions.  I was not busted, no money taken, no restriction.  However I was given an oral reprimand.  In October 1993, I began to have severe back pain, after testing I was found to have Spondyliliothesis and Spina Bifidia.  I was taken off my ship and placed on medical hold for discharge for medical conditions and a 5% disability rating.  In December, my spouse wanted to go to Pennsylvania.  We were snowed in.  I called in and was informed that I was UA.  I stated that I had completed the leave request  and was told by my 2nd class that everything was ok.  When I returned to the base on December 28, 1993.  I was escorted across to the restriction barracks.  Brought up on charges for being UA.

During the Mast, I presented evidence that I had completed the leave request, the 2nd Class Petty Officer in charge, even after verbal confirmation, did not process my request.  He left it in his box while he went on Christmas Leave.  I presented evidence that there would be no probable cause for me going on a “Unapproved Absence”, when I was only some months from a Medical discharge.  I had over thirty days of leave not used.  There would be too much for me to lose.  After deliberation the Captain, gave me thirty days restrictions with $300.00 for one month.  She stated that I should have been more deligent in making sure my request was completed.  The 2nd Class Petty Officer was reprimanded for not doing his job.

After my son was born in August 1992, my family and I moved into Base Housing.  The Family that had lived there prior to us, had not forwarded their mail.  I went to the Post Office and completed the forwarding card, because for months, we kept receiving their mail.  While I was serving the thirty day restriction in 1994, NIS contacted the command stating that I had forged the person’s signature.  Several signature samples were taken and no evidence found to match.  Instead of dropping the charges, NIS brought up charges of a History of Misconduct to include the recent Unapproved Absence charge and the Oral reprimand in 1990.  It was rushed through, since discovering that my EAOS was ending on April 15, 1994 and that I was being discharged medically (back condition) with a lump sum payment.

I was represented by a JAG Officer who argued his case, but in the end, it was determined that even after extenuating circumstances, there was a history of misconduct.  I lost my ranking from an E4 to an E5, restriction, pay deduction and discharge from the Navy after serving three years, eleven months and twenty-three days on an “Other than Honorable/Misconduct”.

After volunteering over three years to serve my country during the Gulf War, building Torpedoes, serving on two Submarine Tenders, I lost my eligibility for my GI Bill (continuing my education), after paying $1200.00 of my own pay, medical discharge and monetary compensation of more than $10,000.00 for my disability ranking of 5 %.  This Mast was rushed and concocted to avoid my true discharge and compensation.

I have recently applied for the GI Bill (see attached) and was notified that I did not qualify for benefits due to my discharge of” Under Honorable Conditions”.

Since my discharge, I have continued to serve my community, by working for the Department of Family and Children Services in Charleston South Carolina and Decatur Georgia.  I then began to work for the Department of Human Resources under the Social Security Administration.  Currently, I work for MetLife as a Case Manager handling Disability Claims.

How ironic that I was not granted my disability and compensation but I continue to approve others claims every day since 1995.

Therefore, I was humbly requesting that my discharge be upgraded to Honorable, so that I may be eligible for the GI Bill, so that I may continue complete my Bachelor’s degree in Education.”

Documentation

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

Letter from Veteran’s Affairs
Letter from Applicant

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	891204 - 900416	COG
	Active:  None

Period of Service Under Review:

Date of Enlistment:  900416		Date of Discharge:  940412

Length of Service (years, months, days):

	Active:    03  11  23
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  61

Highest Rate:  TM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.8 (6)	Behavior:  3.7 (6)		OTA:  3.7

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  6

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

910919:	NJP for violation of UCMJ, Article 78:  Received and comforted a member then known to be in a UA status, violation of UCMJ, Article 107: False official statement to Master-At-Arms.
	Award: Oral reprimand.  No indication of appeal in the record.

930526:	Retention Warning from [USS FRANK CABLE]:  Advised of deficiency (failure to pay just debts) notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

940107:	NJP for violation of UCMJ, Article 86:  Absence without leave from 0700, 23 DEC 03 to 0650, 28 DEC 93.
	Award: Restriction and extra duty for 5 days.  No indication of appeal in the record.

940217:	NJP for violation of UCMJ, Article 123:  Forgery on 14 JUN 93, violation of UCMJ, Article 134: Taking and opening mail.
Award: Forfeiture of $530.00 per month for 2 month(s) (suspended for 6 months), restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

940217:	Transient Personnel Unit notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense as evidenced by three prior NJP’s and violation of UCMJ, Articles 123 and 134.

940225:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

940316:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct and commission of a serious offense, that the misconduct warranted separation, and recommended by a 2-1 vote that the discharge be under other than honorable conditions.

940316:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. 

940328:	BUPERS directed 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 19940412 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:  Processing for administrative separation due to misconduct takes precedence over separation for other reasons.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the Applicant’s enlistment.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) on three separate occasions for violating UCMJ, Articles 78, 86, 123, and 134 thus substantiating the misconduct.  The Applicant has not provided any evidence to substantiate her claims regarding the NCIS investigation or the period she was UA to refute the presumption of regularity in this case.  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, demonstrating she was unsuitable for further service.  An upgrade to honorable conditions would be inappropriate.  Relief denied. 

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB).  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits and this issue does not serve to provide foundation upon which the Board can grant relief.  

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, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate her misconduct while on active duty.  

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 5, effective 05 Mar 93 until 21 Jul 94), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A 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