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

FOR OFFICIAL USE ONLY

ex-HN, USN
Docket No. ND06-00564

Applicant’s Request

The application for discharge review was received on 20060324.  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 20070110.  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 General (Under Honorable Conditions) by reason of misconduct due to commission of a serious offense.

PART I - ISSUES AND DOCUMENTATION

Issues, as stated

Propriety:  Failed to consider mental health issues
Equity:  Post-service conduct

Documentation

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

Applicant’s DD Form 214	 [Service 8 (2) and Member 1 (3)]
59 pages of Applicant’s service record (includes numerous duplicate copies)
Performance Counseling Sheets (6 pages)
54 pages of Applicant’s medical record
Emails from LT E_ B. R_, MSC, USN, Staff Psychologist, NH Jax (2 pages)
Department of Veteran’s Affairs Rating Decision, dtd October 3, 2005 (3 pages)
Authorization and Consent to Release Information to the Department of Veterans Affairs, dtd June 14, 2005 (2 pages)
Computer print out of Navy Times.com article, dtd March 6, 2006 (19 pages) 
T_ H_ Homes Labor Growth Review Criteria, dtd August 3, 2006 (6 pages)
Ltr from Department of Veterans Affairs, D_ K. P_, dtd October 5, 2006 (5 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19990522 - 19990830	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19990831		Date of Discharge:  20040907

Length of Service (years, months, days):

	Active:    05  00  07  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  20

Years Contracted:  4 (23-month extension)

Education Level:  12				AFQT:  42

Highest Rate:  HM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.7 (7)		Behavior:  2.3 (7) 			OTA:  2.84 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Good Conduct Medal FPE:(2002AUG), Presidential Unit Citation, 9MM Pistol Marksman

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events: 

021028:	NJP for violation of UCMJ, Article 121:  SNM (Applicant) did on or about 020918 steal a Sony Playstation game cartridge of a value of $49.00, the property of the Marine Corps Exchange.
	Award:  Forfeiture of $323.00 pay per month for 1 months, restriction and extra duty for 14 days.  No indication of appeal in the record.

021204:	Page 13 Counseling & Warning.  Member failed to maintain qualification as an enlisted Marine Force Warfare Specialist (FMF).
	[Extracted from Report and Disposition of Offenses, NAVPERS 1626/7.]

040708:	NJP for violation of UCMJ, Article 92:  Failure to obey order or regulation.
	Specification 1: In that Hospital Corpsman Third Class C_ R. C_ (Applicant), U.S. Navy, Naval Hospital Jacksonville, on active duty, did, at Naval Hospital Jacksonville, having knowledge of a lawful order issued by Commanding Officer Naval Hospital Jacksonville, to wit: Paragraph 3, NAVHOSPJAXNOTE 6110, dated 040108, an order which it was his duty to obey, did at Naval Hospital Jacksonville, on or about 040426, fail to obey the same by wrongfully failing to participate in the Physical Readiness Test.
	Violation of UCMJ, Article 107:  False Official Statements.
	Specification:  In that Hospital Corpsman Third Class C_ R. C_, U. S. Navy, Naval Hospital, Jacksonville, Florida, on active duty, did, at Naval Hospital Jacksonville, Florida on or about 040430, with intent to deceive, make to Hospital Corpsman First Class S_ C_, U. S. Navy, an official statement, to wit:  I completed the PRT, or words to that effect, which was totally false, and was then known by the said Hospital Corpsman Third Class C_ R. C_, U.S. Navy to be so false.
	Award:  Forfeiture of $793.00 pay per month for 2 months, extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

040727:	Applicant notified of intended recommendation for discharge by reason of misconduct due to commission of a serious offense with the least favorable characterization of service as general (under honorable conditions).

040802:	Applicant found physically qualified for separation.

040803:	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 and have GCMCA review of discharge.

040812:	Commanding Officer, Naval Hospital Jacksonville, recommended to Commander, Navy Region Southeast, that the Applicant be discharged by reason of misconduct due to commission of a serious offense with a characterization of service as general (under honorable conditions).  Commanding Officer’s comments:  “On 040708, HN C_ (Applicant) appeared before me at Nonjudicial Punishment for violations under the Uniform Code of Military Justice (UCMJ), Article 92, failure to obey a lawful order and Article 107, false official statement.  As a result of this mast documented in enclosure (2), there is sufficient evidence to support processing HN C_ for administrative separation for misconduct due to commission of a serious offense.  HN C_ also has a mast from his previous command for violation of the UCMJ, Article 121, Larceny.  His repeated misconduct cannot be tolerated and retention of HN C_ would be detrimental to good order and discipline of this command.  Therefore, I recommend that HN C_ be separated from the Naval service with the characterization of service as General.”

040820:	Commander, Navy Region Southeast, authorized the Applicant's discharge by reason of misconduct due to commission of a serious offense with a characterization of service as general (under honorable conditions).

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 20040907 by reason of misconduct due to commission of a serious offense (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).  

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 a failure to maintain qualification as an enlisted Marine Force Warfare Specialist and 2 nonjudicial punishment proceedings for violations of Articles 92, 107 and 121 of the UCMJ.  The NDRB advises the Applicant that certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline. Violations of Articles 92, 107 and 121 are considered serious offenses and a punitive discharge is authorized if adjudged at a special or general court-martial.  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 denied. 

The Board found no indication in the record that the Applicant was inequitably or improperly denied treatment for mental health issues, nor any evidence that the Applicant’s mental health issues had any bearing on his failure to take the Physical Readiness Test and his subsequent lie that he had taken it.  Furthermore, for the Applicant’s edification, DoD disability regulations do not preclude a disciplinary separation.  SECNAVINST 1850.4E stipulates that separations for misconduct take precedence over potential separations for other reasons.  Relief is not warranted.

The Applicant implies that he was discharged in order to deny him service benefits.  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.  

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 the service.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct which precipitated the discharge.  Relief denied.

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), re-issued October 2002, effective 22 Aug 02 until 25 April 2005, Article 1910-142 [formerly 3630605], SEPARATION 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, Articles 92, Failure to obey lawful order or regulation, and 107, False official statement.

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