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

FOR OFFICIAL USE ONLY

  ex-SR, USN
Docket No. ND05-01473

Applicant’s Request

The application for discharge review was received on 20050908.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060614.  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 the character of the discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application: 

“I am requesting a upgrade of my discharge so that I may have access to military benefits and GI Bill to further my education.”

Documentation

Only the service and medical records were reviewed.  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:  None
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19950525		Date of Discharge:  19980204

Length of Service (years, months, days):

	Active:    02  08  10 (Does not exclude lost time)   
	Inactive:  00  03  26

Time Lost During This Period (days):

	Unauthorized absence:  12 days
	Confinement:		  3 days

Age at Entry:  18 

Years Contracted:  4

Education Level:  12				AFQT:  40

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.3 (3) 		Behavior:  2.6 (3)		OTA:  3.11 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  * DD Form 214 not contained in the record.

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MILPERSMAN, Article 1910-142.

Chronological Listing of Significant Service Events: 

950921:	Commenced active duty for a period of 3 years.

960416:	Retention Warning:  Advised of deficiency (Violation of the UCMJ, specifically chronic unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

970523:	NJP for violation of UCMJ, Article 86:  Absence without leave.
	Violation of the UCMJ, Article 92: Failure to obey an order or regulation.
Award:  $505.00 pay per month for 2 months (suspended for 6 months), reduction to E-2 (suspended for 6 months); restriction and extra duties for 45 days.  No indication of appeal in the record.

971230:	Applicant to unauthorized absence at 0800 on 971230.

980112:	Applicant from unauthorized absence at 0645 on 980112 (12 days/surrendered).

980116:	Retention Warning:  Advised of deficiency (Violation of the UCMJ, specifically Article 86-absence without leave and substandard uniform appearance.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

980116:	NJP for violation of UCMJ, Article 86 (3 specs):  Absence without leave.
	Award:  Forfeiture of $505.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

980123:	NJP for violation of UCMJ, Article 92 (9 specs):  Failure to obey order or regulation.
Award:  Confinement for 3 days, forfeiture of $450.00 pay per month for 2 months (suspended for 6 months), reduction to E-1 (suspended for 6 months).  No indication of appeal in the record.
.

980128:	NJP for violation of UCMJ, Article 92:  (3 specs).
	Violation of the UCMJ, Article 117: (2 specs).
Award:  Confinement for 3 days, forfeiture of $450.00 pay per month for 2 months.  No indication of appeal in the record.

980128:	Forfeiture of pay and reduction in rate awarded at NJP on 980123 vacated due to continued misconduct.

980128:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by four non-judicial punishments and violating two NAVPERS 1070/613 counseling/warning entries in your current enlistment; and misconduct due to commission of a serious offense as evidence by CO’s NJP 97 May 23 violation of the UCMJ, Article 92 (Failure to obey an order or regulation), CO’s NJP 98 Jan 23 violation of the UCMJ, Article 92 (Failure to obey an order or regulation), CO’s NJP 98 Jan 28 violation of the UCMJ, Article 92, 117 (Failure to obey an order or regulation and provoking speeches and gestures).

980128:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

980128:	Commanding Officer, USS GUNSTON HALL (LSD 44) recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by four non-judicial punishments and violating two NAVPERS 1070/613 counseling/warning entries in your current enlistment; and misconduct due to commission of a serious offense as evidence by CO’s NJP 97 May 23 violation of the UCMJ, Article 92 (Failure to obey an order or regulation), CO’s NJP 98 Jan 23 violation of the UCMJ, Article 92 (Failure to obey an order or regulation), and CO’s NJP 98 Jan 28 violation of the UCMJ, Article 92 (Failure to obey an order or regulation).  Commanding Officer’s comments:  “Per reference (a) article 3630600 and 3630605 processing for administrative discharge is warranted.  I recommend that a characterization of Other Than Honorable be given due to the amount and nature of the offenses.  Every effort has been taken to correct his deficiencies, but SR D_ (Applicant) shows no desire to conform with the basic standards of the Navy.  SR D_(Applicant) has waived his rights to an administrative board and understands the severity of this characterization.  His evaluations outlined in enclosure (3) show him as a below average Sailor who possesses no potential in the Naval Service and his conduct is unacceptable and brings discredit upon the Naval Service.”

980203:	GCMCA, Commander, Amphibious Group TWO directed the Applicant's discharge under other than honorable conditions by reason of misconduct commission of a serious offense.

	Service Record is missing elements of information (DD Form 214).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980204  with a service characterization of under other than honorable conditions.  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).

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 4 nonjudicial punishment proceedings for violations of Articles 86 (4 specs of UA), 92 (12 specs of failure to obey an order or regulation) and 117 (provoking speech or gestures).  Violations of UCMJ Articles 92 and 117 are considered serious offenses.  In addition, the Applicant received 2 retention warning and had a suspended NJP award vacated due to continued misconduct.  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.  

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 additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

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

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

C.   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