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

FOR OFFICIAL USE ONLY

 ex-HR, USN
Docket No. ND05-00842

Applicant’s Request

The application for discharge review was received on 20050413.  The Applicant requested that his characterization of service received at the time of discharge be changed to honorable.  The Applicant requested a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060119.  After a thorough review of all available 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 characterization of the discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to the commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application: 

“I’M TRYING TO USE MY GI BILL THAT I PAID INTO”

Documentation

The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19931207 – 19940612		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19940613		Date of Discharge:  19960815

Length of Service (years, months, days):

	Active:    02 02 03  
	Inactive:  None

Time Lost During This Period (days):  

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  19

Years Contracted:  4 (12 month extension)

Education Level:  12				AFQT:  50

Highest Rate:  HN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*		Behavior:  3.6 (1) 		OTA:  2.96 (2)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal.

* Not Available

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events: 

931207:	Program waiver approved for 12-time use of marijuana for the HM rating.

941103:	NJP for violation of the UCMJ, Article 90 (willfully disobey a superior commissioned officer).
Award:  Forfeiture of $250 per month for 2 month (1 month suspended for six months), reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

950428:	Suspended forfeiture of pay and reduction in pay grade awarded at NJP on 941103 vacated due to continued misconduct i.e. unauthorized absence and failure to obey a direct order.

950502:	Retention Warning:  Advised of deficiencies (unauthorized absences, failure to obey direct orders), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

960415:	NJP for violation of the UCMJ, Article 134 (fleeing the scene of an accident).
	Award:  Reduction to E-1.  No indication of appeal in the record.

960506:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and pattern of misconduct.

960624:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

960701:	Commanding Officer, Naval Hospital, Millington recommended the Chief of Naval Personnel that HR W_ (Applicant) be discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments:  “HR W_ (Applicant) shows no interest in continuing his Naval career as evidenced by his decision to waive an Administrative Board.  He has shown disrespect for his superior commissioned officers, as well as total disregard for lawful orders given to him by his superiors as evidenced by his Non-Judicial Punishment vacation on 28 APR 95 and his VUCMJ Article 134 (Fleeing the scene of an accident) Non-Judicial Punishment of 15 Apr 96.  It is my recommendation that HR W_ (Applicant) be discharged with an Other Than Honorable discharge by reason of misconduct due to commission of serious offense.”

960729:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960815 by reason of misconduct due to the commission of a serious offense (A and B) with a service characterization of under other than honorable conditions.  After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

To be legally sufficient, a finding of misconduct due to the commission of a serious offense requires only a showing (by a preponderance of the evidence) that misconduct, which would warrant a punitive discharge if tried by special or general court-martial, has occurred.  When the service of a member of the U.S. Navy has met the standard of acceptable conduct and performance, it is appropriate to characterize that service as honorable.  A under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct or performance outweigh the positive aspects of the member's military record.  The Applicant’s service was flawed by 2 nonjudicial punishments (NJP) for violations of UCMJ, Article 90 (willfully disobey a superior commissioned officer) and Article 134 (fleeing the scene of an accident), as well as the vacation of a suspended sentence and a retention warning for continued misconduct.  Reference (A) defines violations of the UCMJ, Article 90 (willfully disobey a superior commissioned officer) and Article 134 (fleeing the scene of an accident) as the commission of a serious offense, the misconduct for which the Applicant was discharged.  Applicable regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment.  Separations under these conditions generally result in an under other than honorable characterization of service.  Relief denied.

The Applicant’s sole issue is that of obtaining the use of his GI Bill.  The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization 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 purpose of enhancing medical, employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  This issue is without merit, relief not warranted.

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 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 90 (willfully disobey a superior commissioned officer) and Article 134 (fleeing the scene of an accident).

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