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

  ex-MMFR, USN
Docket No. ND05-00348

Applicant’s Request

The application for discharge review was received on 20041217.  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 20050214.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The NDRB discovered an impropriety and voted unanimously to correct the Narrative Reason for Separation to: GENERAL (UNDER HONORABLE CONDITIONS)/ MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 – 142 and Separation Code “GKQ.”

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I want to use my educational benefits that i paid into.  Although I made some mistakes toward the end of my naval career, I did receive (2) two Honorable discharges for re-enlisting and a Good Conduct service pin for 6 (six) years of continuous good conduct.”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	901019 - 910904	COG
	Active:  USN 			910905 - 950731	HON
					950801 - 970727	HON
							
Period of Service Under Review:

Date of Enlistment:  970728		Date of Discharge:  981208

Length of Service (years, months, days):

	Active:    01  04  11
	Inactive:  None

Age at Entry:  24			Years Contracted:  4 

Education Level:  12			AFQT:  39

Highest Rate:  MM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (1)		Behavior:  2.00 (1)		OTA:  3.00

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC, B’E’R, GCM, NDSM, SASM (2), SSDR, LoA, LoC

Days of Unauthorized Absence:  3

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

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

Chronological Listing of Significant Service Events:

970728:	Applicant reenlisted for 4 years.

970729:	Applicant to UA.

970731:	From UA.

970925:	NJP for violation of UCMJ, Article 86 (2 Specs):  Absence without leave, 2 specs.  Violation of UCMJ, Article 87: Missing movement.
	Award: Forfeiture of $500 per month for 2 month(s), restriction and extra duty for 45 days, reduction to E-3.  RIR and forf susp 6 mos.  No indication of appeal in the record.

980202:	Punishment suspended 970925 vacated due to further misconduct.

980207:	NJP for violation of UCMJ, Article 86:  Unauthorized absence.  
	Award: RIR, susp 6 mos.  No indication of appeal in the record.

980708:	Punishment suspended 980207 vacated due to further misconduct. 

980724:	NJP for violation of UCMJ, Article 92:  Disobey a lawful order.  
Award: Restriction and extra duty for 45 days, reduction to MMFR.  No indication of appeal in the record.

980727:	Applicant notified of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct and by reason of misconduct due to the commission of serious offenses with the least favorable characterization of service as under other than honorable conditions.

980812:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

981027:	An Administrative Discharge Board, based upon a preponderance of the evidence and by a unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense.  The Board found by a vote of 2-1 that the misconduct warranted separation and by unanimous vote recommended that, if separated, the characterization of discharge should be general under honorable conditions.  

981119:	Commanding Officer advised CHNAVPERS the Applicant was discharged with a general (under honorable conditions) discharge by reason of misconduct due to a pattern of misconduct and misconduct due to the commission of serious offenses.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19981208 with a general (under honorable conditions) and as reported on his DD Form 214 the reason was 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), but the stated reason for discharge was in error and a correction will be recommended to the Commander, Naval Personnel Command, Milllington, TN.

Issue 1.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s service was marred by nonjudicial punishment proceedings for violations of Articles 86, 87 and 92 of the UCMJ.  Violations of Articles 87 and 92 are considered serious offenses.  The Applicant was notified of the intended recommendation for discharge for misconduct due to a pattern of misconduct and by reason of commission of a serious offense.  The Administrative Discharge Board found the Applicant had committed a serious offense and a pattern of misconduct and that the misconduct warranted separation with a characterization of general (under honorable conditions).  The Commanding Officer directed the Applicant’s discharge by reason of misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense; however, failed to indicate which reason for discharge would be reflected on the DD Form 214.  Since the Applicant was not given a retention warning during his last enlistment, a requirement in order to be separated by reason of misconduct due to a pattern of misconduct, the Applicant’s assigned Narrative Reason for Separation, Pattern of Misconduct, was found to be improper.  Accordingly, the Board found that the Applicant’s Narrative Reason for Separation shall be corrected to show “MISCONDUCT” due to commission of serious offense, thus modifying the separation authority to MILPERSMAN 1910-142 and the separation code to GKQ.  
Further, 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 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 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.  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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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

D.  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