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

FOR OFFICIAL USE ONLY

ex-HR, USN
Docket No. ND06-00471

Applicant’s Request

The application for discharge review was received on 20060208.  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 20061130.  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 characterization of the discharge shall not change.  The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to a pattern of misconduct.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues:

Impropriety – command misconduct
Equity/In-service – punished more harshly than warranted

Applicant’s Remarks:  (Taken from the DD Form 293 to the Board.)

“I am now enrolled in college at the University of Arkansas in Fayetteville, AR and would like to receive my G.I. Bill to assist me in paying for my education.”

Documentation

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

Applicant’s DD Form 214
5 pages from Applicant’s Medical Record
Ltr from Applicant E_ M. T_, dtd July 28, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19950706 - 19960310	COG
	
Period of Service Under Review:

Date of Enlistment:  19960311		Date of Discharge:  19990702

Length of Service (years, months, days):

	Active:    03  03  22  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18

Years Contracted:  4 (12-month extension)

Education Level:  12				AFQT:  52

Highest Rate:  HN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*		Behavior:  NA*		OTA:  NA*

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

* Not Available

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

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

Chronological Listing of Significant Service Events: 

980105:	Retention Warning:  Advised of deficiency (You failed to safely operate a government vehicle on 971219, resulting in damage to the government vehicle.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

980116:	Retention Warning:  Advised of deficiency (You have shown a trend in regards to mustering on-time for watch.  You were late mustering for watch (0830-0905) on 971005, (0750-0759) on 971028, and (0650-0715) on 980116.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

990119:	NJP for violation of UCMJ, Article 86:  Absence without leave.
	Award:  Forfeiture of $275.00 pay per month for 1 month, reduction to E-2(suspended for 6 months).  No indication of appeal in the record.

990210:	Punishment suspended at NJP vacated for subsequent misconduct (UA from morning muster). 

990311:	NJP for violation of UCMJ, Article 111:  Reckless driving.
Violation of UCMJ, Article 92:  Dereliction of duty.
	Award:  Forfeiture of $100.00 per month for 6 days extra duty (suspended for 6 months).  No indication of appeal in the record.

990517:	NJP for violation of UCMJ, Article 86:  Absence without leave.
	Award:  Restriction and extra duty for 7 days, reduction to E-1.  No indication of appeal in the record.

990524:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.

990527:	Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

990727:	Commanding Officer, Naval Hospital, separated the Applicant locally with a general (under honorable conditions) by reason misconduct due to a pattern of misconduct.  Commanding Officer’s comments:  “HR W_ Applicant was found guilty at Officer in Charge’s Non-Judicial Punishment on 970402, 990119, and 990517, enclosures (2) through (4).  The last two NJP’s were for violations of UCMJ Article 86, Unauthorized Absence.  She also received a NAVPERS 1070/613, Counseling and Warning, on 980116 for the same offense.  On 990210, HR W_ suspended reduction in rate from her 990119 NJP was vacated due to being absent from morning muster on 990209.  Additionally, she received numerous written counseling chits for her continued tardiness.  HR W_ was a constant burden to her command.  Although given ample opportunity, she could not conform to Navy standards.  Therefore, I separated her on 990702 for misconduct due to a pattern of misconduct with a characterization of General (Under Honorable Conditions).  She did not object to her separation.”

990810:	COMNAVPERSCOM directed issuance of a DD215 to correct the separation code on the Applicant’s DD214.  .

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990702 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of general (under honorable conditions).  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).  The Board presumed regularity in the conduct of governmental affairs (E).

In the Applicant’s case, the Board could discern no impropriety and therefore considered the Applicant’s discharge proper and equitable.  Specifically, Applicant alleged that she was told that her mast was going to be open to make an example of her.  She states that she was humiliated and implies that her humiliation was the command intent.  The record, however, contains no evidence of any wrongdoing by the Applicant’s Commanding Officer or anyone else for that matter in her nonjudicial punishment.  That her mast was open is not improper in and of itself.  Whether a mast is open or closed is a matter of the commanding officer’s discretion.  Navy policy encourages open mast because it is considered conducive to good order and discipline. The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support her issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support her contention that her mast was improper.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary.  As such, this Board presumed that Applicant’s discharge was regular in all respects.  Relief denied.  

The Applicant requests upgrade of the characterization of her service.  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.  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 service was marred by two retention warnings and three nonjudicial punishment proceedings for violations of UCMJ Articles 86 (unauthorized absence) and 111 (reckless driving).  Violations of Article 111 are considered serious offenses for which a punitive discharge is authorized.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy and falls far short of that required for an upgrade of her characterization of service.  Relief is not warranted.

The Applicant implies that her discharge was inequitable because she was punished more harshly than warranted given her medical condition.  She also states that she was compared to someone else with the same medical condition and expected to perform similarly.  The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  A preponderance of the evidence reviewed supports the conclusion that the Applicant engaged in a pattern of misconduct, that separation from the Naval service was appropriate, and that a general (under honorable conditions) discharge was warranted.  As such, relief is denied.

The Applicant requests an upgrade so that she can get educational benefits.  The following is provided for the edification of the applicant.  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 of 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.  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.  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 111 (reckless driving).

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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