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

   ex-GMSN, USN
Docket No. ND05-00214

Applicant’s Request

The application for discharge review was received on 20041122.  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 20050602.  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)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated:

“To Whom It May Concern:

This is attachment 2 for question # 6 on the application for the review of discharge.

I challenge the statements made by my commanding officer at the time of the incident.  He stated that I had total disregard for the Navy Core Values, honor, courage, and commitment; bringing discredit to the Navy.  I can assure you that I carried myself as a gentlemen and upheld the Navy code of honor.  I demonstrated courage and commitment during my 4 years and one month served in the Navy.  I had every intention of reenlisting in the service and returning to San Diego, CA for my second attempt to become a Navy SEAL.  I was in class 234 which you can see filmed on the Discovery Channel.  In fact, you can contact any instructors involved with that program regarding my character and dedication to the United States Navy.

My offense was related to sailors under my watch connecting music radios that were already installed in the patrol vehicles.  I personally did not do this.  My offense came when questioned whether or not I knew who did commit the infraction.  I denied knowing when I actually did.  This however is not a crime; it was an error in judgment, which I realize now.  There was no “damage” done to any government property.

I served 45 days restriction, 45 days extra duty, forfeiture of ¼ pay ($764.00) for two months, and a reduction in rate to E-3.  In addition to this, I had to send my wife of 3 months, C___, back to her native country Romania because I couldn’t afford to keep her in Sicily during my restriction.  I was also forced to separate from the Navy, which was a huge disappointment because I had, as stated above, every intention of reenlisting.

Since my separation from the Navy, I have purchased a home with my wife in Bel Air, MD.  I am currently working between 40 - 50 hours a week for Infra-Metals Company in Baltimore, MD and attending Harford Community College in Churchville, MD.  I completed 2 courses with the grades of “A” in both during this past fall semester.  I am taking 3 courses now, Business Law, Computer Science, and Theology.  I will finish in approximately two weeks and I am carrying grades no less than A’s and B’s in these courses.

I am proud to have served in the Navy and I am proud to be an American living in the United States.  I made an error in judgment and paid what I consider a very hefty price even without the current discharge status.  I want to continue my education to help me achieve my goals for a good life with my wife and build a firm platform for a family in this country.  I am asking you to change the status of my discharge to HONORABLE.  As I strive to better myself in the community, I don’t want this to be something that can hold me back.  As you can see from the Navy’s papers from Sigonella, I served to the best of my ability for 4 years and one month prior to the Navy saying I should be discharged.

Thank you in advance for your consideration,

G___ M___ D___”

Documentation

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

Applicant’s DD Form 214 (2)
Letters of Explanation from Applicant (3)
Letter from Applicant dated March 28, 2005 (2)
Cover Letter from Applicant dated April 23, 2005
Commanding Officer’s Recommendation for Administrative Separation dated March 29, 2004 (2 pages)
Administrative Separation Processing Notification/Statement of Awareness dated  February 24, 2004 (2 pages)
Letter from B___ A. M___, United States Senator dated September 29, 2004
Reference Letter dated March 1, 2004
Character Reference Letter dated March 1, 2004
Letter from B___ A. M___, United States Senator dated June 28, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	991015 - 000214	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  000215		Date of Discharge:  040527

Length of Service (years, months, days):

	Active:    04  03  13
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (5 month extension)

Education Level:  12			AFQT:  69

Highest Rate:  GM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (4)		Behavior:  3.00 (4)		OTA:  2.96

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, NDSM, OSR

Days of Unauthorized Absence:  None

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

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

Chronological Listing of Significant Service Events:

020117:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful regulation.
	Award:  Forfeiture of $655.00 pay per month for 1 month, restriction and extra duty for 30 days, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

031212:	NJP for violation of UCMJ, Article 107 and 108.
	Award:  Forfeiture of $764.00 pay per month for 2 months(1 month suspended for 6 months), restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record [Extracted from CO’s message of 040329].

040224:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

040224:  	Applicant advised of his rights and having elected to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to submit a written statement for consideration by the Separation Authority.

040329:	Commanding Officer, U.S. Naval Air Station, Sigonella directed the Applicant's discharge general (under 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 20040527 with a general (under honorable conditions) character of service for misconduct due to commission of a serious offense (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issue 1.  The Applicant states that his false statement was “not a crime; it was an error in judgment” and that there “was no “damage” done to any government property.”  On 20031212, the Applicant was subject to nonjudicial punishment proceedings for violating Articles 107 and 108 of the UCMJ.  All violations of Article 107 are considered serious offenses.  The statements and documents provided by the Applicant do not refute the presumption of regularity in this case.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.  

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 two nonjudicial punishment proceedings for violations of Articles 92, 107 and 108 of the UCMJ.  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.

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 on the propriety and equity of the discharge.  

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 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 sufficient documentation for the Board to consider.  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.  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), re-issued October 2002, effective 22 Aug 02 until Present, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 107, false official statement, if adjudged at a Special or General Court Martial.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “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