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

  ex-RMSR USN
Docket No. ND05-00641

Applicant’s Request

The application for discharge review was received on 20050308.  The Applicant requests the characterization of service received at the time of discharge be changed to general (under honorable conditions).  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 20050727.  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/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I paid 1200 dollars into the Montgomery GI Bill.  I would like to use those benefits to continue my undergraduate study at Central Washington University.  In order to use those benefits I have been instructed to have my discharge upgraded before I can use them.”

Applicant provided the following Remarks:

“For the past six years I have regretted not completing my tour of duty aboard the Bataan.  I made some mistakes while enlisted in the Navy.  I am pursuing a career education in Finance.  I don’t want to not be able to use those GI Benefits because of mistakes I made as a teenager.  I am a married 26-year-old Father of Four and I want to be able to afford them the best chance of success possible with out a degree I don’t think that can happen.

Thank you,

[signed]  M_ D. B_  (Applicant)”

Documentation

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

No additional documentation.

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	960104 - 960611	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  960612		Date of Discharge:  980206

Length of Service (years, months, days):

	Active:    01  07  25
	Inactive:  None

Age at Entry:  17(Parental Consent)	Years Contracted:  4 

Education Level:  12			AFQT:  71

Highest Rate:  RMSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.0 (1)		Behavior:  1.0 (1)		OTA:  1.67

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

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

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

Chronological Listing of Significant Service Events:

970609:	Applicant on unauthorized absence from PCU BATAAN (LHD-5) from 0700, 4 June 1997 until 0823, 4 June 1997.  Unauthorized absence for a period of 1 ½ hours.

970705:	Applicant was on unauthorized absence from PCU BATAAN (LHD-5) from 0640, 23 June 97 until 1430, 23 June 1997.  Unauthorized absence for a period of approximately 7 ½ hours.

971023:	NJP for violation of UCMJ, Article 86:
Specification:  In that Radioman Seaman Apprentice M_ D. B_ (Applicant), U.S. Navy, USS Bataan, on active duty, did, on board USS Bataan, at sea, at or about 0710 hours, 27 September 1997, without authority, fail to go at the time prescribed to his appointed place of duty, to wit:  JMC Underway Section II Watch and morning quarters.
		Award:  Restriction and extra duty for 15 days.

971024:	Retention Warning:  Advised of deficiency (Commanding Officers NJP held on 23 October 1997 for violation UCMJ Article 86 – Unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

971211:	NJP for violation of UCMJ, Article 86:
Specification:  In that Radioman Seaman Apprentice M_ D. B_ (Applicant), U.S. Navy, USS Bataan, on active duty, did, on or about 30 November 1997, without authority, absent himself from his unit, to wit:  USS Bataan, located at Norfolk, Virginia, and did remain so absent until on or about 1 December 1997.
	Award:  Restriction and extra duty for 30 days.

971211:	Retention Warning:  Advised of deficiency (CO’s NJP held on 11 December 1997 for violation UCMJ Article 86 – Unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

971212:	Applicant made and signed a voluntary confession statement to the Criminal Investigative Service Special Agent

980105:	NCIS report contained in record.

980116:	NJP for Charge I, violation of UCMJ, Article 86 (3 specs):
Specification 1:  In that Radio Seaman Apprentice M_ D. B_ (Applicant), USS BATAAN, U. S. Navy, on active duty, did, on board USS Bataan, located at Norfolk, Virginia, at or about 0630, 13 December 1997, without authority, fail to go at the time prescribed to his appointed place of duty, to wit:  Restricted muster.
Specification 2:  In that Radio Seaman Apprentice M_ D. B_ (Applicant), USS BATAAN, U. S. Navy, on active duty, did, on board USS Bataan, located at Norfolk, Virginia, at or about 0730, 21 December 1997, without authority, fail to go at the time prescribed to his appointed place of duty, to wit:  Restricted muster.
Specification 3:  In that Radio Seaman Apprentice M_ D. B_ (Applicant), USS BATAAN, U. S. Navy, on active duty, did, on board USS Bataan, located at Norfolk, Virginia, at or about 0630, 24 December 1997, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Restricted muster.
Charge II, violation of UCMJ, Article 121 (4 specs):
Specification 1:  In that Radio Seaman Apprentice M_ D. B_ (Applicant), USS BATAAN, U. S. Navy, on active duty, did, in the vicinity of Norfolk, Virginia, during the month of October 1997, steal a J.C. Penny’s Credit Card, of some value, the property of Aviation Maintenance Administrationman R_ R. W_, U.S. Navy.
Specification 2:  In that Radio Seaman Apprentice M_ D. B_ (Applicant), USS BATAAN, U. S. Navy, on active duty, did, on board USS Bataan, located at Norfolk, Virginia, on or about 5 December 1997, steal U.S. currency, of a value of about $50.00, the property of Data Systems Technician Second Class J_ M. T_, U.S. Navy.
Specification 3:  In that Radioman Seaman Apprentice M_ D. B_ (Applicant), USS BATAAN, U.S. Navy, on active duty, did, on board USS Bataan, located at Norfolk, Virginia, on or about 5 December 1997, steal three Visa Credit Cards, of some value, the property of Data Systems Technician Second Class J_ M. T_, U. S. Navy.
Specification 4:  In that Radioman Seaman Apprentice M_ D. B_ (Applicant), USS BATAAN, U.S. Navy, on active duty, did, in the vicinity of Military Circle Mall, Norfolk, Virginia, on or about 5 December 1997, steal merchandise, of a total amount of approximately $1,518.81, the property of four merchandise stores.
Charge III, violation of UCMJ, Article 123:  
Specification:  In that Radioman Seaman Apprentice M_ D. B_ (Applicant), USS BATAAN, U.S. Navy, on active duty, did, in the vicinity of Military Circle Mall, Norfolk, Virginia, on or about 5 December 1997, with intent to defraud, falsely make the signature of Data Systems Technician Second Class J_ M. T_, as an endorsement on debit cards to two different Visa Credit Card accounts in the total following words and figures, to wit:  $1518.81 in credit card debit charges and which was used to the legal harm of Data Systems Technician Second Class J_ M. T_, U.S. Navy.
	Award:  Forfeiture of $400.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

980120:	Applicant notified of intended recommendation for discharge by reason of misconduct due to the commission of a serious offense and misconduct due to a pattern of misconduct as evidenced by service record entries in your current enlistment.  Applicant notified that the least favorable characterization of service possible is under other than honorable conditions.

980120:	Applicant advised of rights and having elected not to consult with qualified counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

980121:	Commanding Officer, USS BATAAN (LHD 5), recommended discharge under other than honorable conditions by reason of misconduct due to a pattern or misconduct and misconduct due to commission of a serious offense.  

980203:	Commander, Amphibious Group TWO, authorized the Applicant's discharge under other than 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 19980206 under other than honorable conditions for misconduct due to commission of a serious offense (A and 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).

Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  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.  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 unauthorized absences, multiple larcenies in an amount greater that $1,500.00 and forgeries.  This misconduct resulted in three nonjudicial punishment proceedings for violations of UCMJ Articles 86, 121, and 123.  Under applicable regulations, a violation of UCMJ Article 121, larceny, or Article 123, forgery, is considered a serious offense.  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.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief is not warranted.

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 any documentation for the Board to consider.  Relief denied.

There is no requirement or law that grants recharacterization solely on the issue of obtaining educational benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  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 97 until 29 March 2000, 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 a violation of the Uniform Code of Military Justice, Article 121, larceny and Article 123, forgery, 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 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