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

FOR OFFICIAL USE ONLY

 ex-FCSA, USN
Docket No. ND05-01255

Applicant’s Request

The application for discharge review was received on 20050722.  The Applicant requested that a documentary record discharge review change his characterization of service to honorable.  The Applicant designated a U. S. Congressman from Massachusetts as his representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that members of Congress do not normally represent Applicants before the Board.  If Congressman has agreed to act as representative, the Applicant must submit written authorization to the Naval Discharge Review Board.  Such authorization was not received; therefore the case was reviewed without representation.

Decision

A documentary discharge review was conducted in Washington, D.C. on 2000316.  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 service 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

Applicant’s issues, as stated on the application:

“On February 14, 1997, I was separated from the United States Navy under Other Than Honorable conditions due to Misconduct.  The events proceeding this status of discharge are listed as follows:  I was absent for 2.5 hours on my first duty aboard the USS Vincennes, I used foul language to an E-5 within my work group when I was an E-4 and the third time was for taking money from another shipmate, stealing basically.  Upon the last offense, the Chief Master At Arms told me that he was going to pursue for me a Leavenworth sentence for me if I chose to find legal counsel regarding this matter.  Being a young, foolish, unknowledgeable 21 years old, I chose not to seek counsel and receive punishment at Captain’s Mast.  I was told that they would take my stripe and make me payback the money and be restricted for 30 days.  It was not till Mast that I found out that they were separating me from the USN.  I cried I did not want to be kicked out.  I was not afforded any statements of defense and my LPO and LCPO did not aid in my defense despite the recent improvements I was making in my duties and reliability.  I know stealing is wrong.  I had never done it before.  At the time, I had just been through a bitter divorce and my ex-wife being a previous member, knew the ropes and used them by contracting my command saying that I had not been supporting her while separated.  They intern reduced my pay to $150 per paycheck to pay back the Navy the VHA and BAQ they had paid me during my separation from my wife because I could not show proof that I was sending her money.  I never kept receipts for anything then.  Due to the reduction in pay, I could not pay my car insurance; I could not pay my car payments.  I could not pay my NEX bill or my credit cards with any regularity.  I petitioned the command financial officer and he would not help I do admit that in the beginning I was not a model sailor I even petitioned the Chaplain for help, again no help was given I did however finally start to realize I was not on the right path.  I had been getting better I was not afforded the proper counsel, I was coerced into not requesting counsel by threats of Leavenworth, and I was not told they were going to kick me out.  Had I been told this from the get go, I would have asked for counsel to prevent being kicked out.  I am a good person who made a bad mistake, it was not bad enough to be Separated nor worthy of a Leavenworth sentence, was it?”

Documentation

The Applicant submitted the following documentation for consideration in addition to his service and medical records:

Character reference letter from T_ J. N_, dated January 27, 2004 (3 copies)
Points for Possible Considerations from R_ M. R_ (Applicant), (2 copies, undated)
DD Form 214 (name and dates blacked out, 2 copies)
Letter from United States Congressman, M_ M_, dated September 02, 2005
Letter from the Applicant, undated
Character reference letter from A_ C_, dated September 01, 2005
Thank you letter from Chief of Police Haverhill, Massachusetts, dated December 04, 2003
Certificate of Completion, First Responder First Aid Course, dated June 10, 2004
Certificate of Excellence, dated June 16, 2003
Special Achievement Award, dated July 29, 2003
Letter from Board for Correction of Naval Records, dated February 11, 2005
Letter from the Applicant, dated December 17, 2005 (2 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19930923 - 19931108	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19931109		Date of Discharge:  19970214

Length of Service (years, months, days):

	Active:    03 03 06
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18

Years Contracted:  4 (24 month extension)

Education Level:  12				AFQT:  84

Highest Rate:  FC3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.5 (4)	Behavior:  1.0 (4)	OTA:  1.53 (4)

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

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MILPERSMAN, Article 3630605.

Chronological Listing of Significant Service Events: 

930109:	Pre-service waiver for one time experimental use of marijuana while in delayed entry program.

960124:	NJP for a violation of the UCMJ, Article 86 (unauthorized absence).
	Award:  Forfeiture of $200 per month for 2 months, restriction and extra duty for 30 days.  No indication of appeal in the record.

961016:	NJP for violations of the UCMJ, Article 91 (insubordinate conduct toward warrant officer, non-commissioned officer, or petty officer) and Article 92 (failure to obey order or regulation).
	Award:  Restriction and extra duty for 21 days, reduction to E-3.  No indication of appeal in the record.

970123:	NJP for violations of the UCMJ, Article 121 (larceny, 2 specs):
	Specification 1: Larceny of personal property/funds on or about, 30 Sep 96, stole a Navy Federal Credit Union ATM Bank Card, the property of FC3 D_ B_, U.S. Navy.
	Specification 2: On or about, 30 Sep 96, Stole approximately $382.00, in cash, from Navy Federal Credit Union, the property of FC3 D_ B_, U.S. Navy.
	Award:  Restriction and extra duty for 30 days, reduction to E-2.  No indication of appeal in the record.

970214:	DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970214 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).  The Board presumed regularity in the conduct of governmental affairs (E).

To be legally sufficient a finding of misconduct due to the commission of a serious offense requires only a showing, by preponderance of the evidence that misconduct which would warrant a punitive discharge if tried by special or general court-martial, has occurred.  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.  The Applicant’s service was tarnished by three nonjudicial punishments (NJP) for violations of the UCMJ, Article 86 (unauthorized absence), Article 91 (insubordinate conduct), Article 92 (failure to obey and order or regulation), and Article 121 (larceny, 2 specifications).  Reference (A) defines each violation of Articles 91, 92, and 121 as the commission of a serious offense, the misconduct for which the Applicant was discharged.  There is credible evidence in the record that the Applicant committed serious offenses.  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.  Separations under these conditions generally result in an under other than honorable conditions characterization of service.  Relief is denied.

The Applicant contends that he waived his rights to court martial based upon threats of being sentenced to Leavenworth and he did not know that NJP would lead to his discharge.  The Applicant bears the burden of presenting substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support his contentions.  The facts are that the Applicant was charged with a crime punishable by confinement if adjudicated by courts martial.  Furthermore, the administrative discharge process is a separate and distinct process from punitive proceedings such as NJP and court-martial.  Administrative discharge processing is administrative in nature and not a form of punishment.  The administrative discharge process may be initiated prior to, following, or even in the absence of NJP as a completely separate process.  The record clearly reflects the Applicant’s willful misconduct, demonstrating he was unfit for further service.  The NDRB found the Applicant's issue without merit.  Relief not warranted.

The Applicant contends that his requests for financial assistance from his command were ignored.  The NDRB takes these allegations seriously.  Nevertheless, it remains the Applicant’s responsibility to substantiate his claims through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support his issue.  Furthermore, the record contains no evidence of any wrongdoing by the Applicant’s Commanding Officer or any other member of his chain of command.  The NDRB sees no connection between the Applicant’s misconduct and the alleged failure of his chain of command to assist the Applicant in his personal financial matters.  The record clearly reflects the Applicant’s misconduct began in January 1996 forming a pattern throughout the year leading to his discharge in February 1997.  This issue provided no basis for granting an upgrade.  Relief 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 based on the issue of obtaining Veterans' benefits.  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, housing 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.  

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.  The Applicant provided two character reference letters (including employment verification and security clearance information), two certificates of achievement, a first responder course completion certificate, and a letter confirming his status as an auxiliary police officer.  The Applicant also claims the following undocumented post service accomplishments; associates degree, continuing education, church, family, financially responsible, and clean criminal record.  After careful consideration, the Board concluded the Applicant’s post-service achievements have been insufficient to mitigate his misconduct while in the Naval service.  Relief denied.

In the absence of a complete discharge package, the Board presumed regularity of governmental affairs.  The record does document misconduct that is classified as the commission of a serious offense.  The Board presumed the Applicant’s discharge to have been conducted in accordance with that described in reference “A”.  If the Applicant feels his discharge was administratively flawed he bears the burden of establishing his issues through the presentation of substantial and credible evidence.

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 14, effective 
03 Oct 96 until 971212, Article 3630605, 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 91, 92, and 121.

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.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

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