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

FOR OFFICIAL USE ONLY

ex-AA, USN
Docket No. ND06-00693

Applicant’s Request

The application for discharge review was received on 20060426.  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 20070209.  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

Decisional Issues

Equity:  Characterization not equitable based on overall record.

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 215  (Member 4)
Applicant’s DD Form 214  (Members Copy 4)
18 pages of Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19960617 - 19961006	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19961007		Date of Discharge:  19980731

Length of Service (years, months, days):

	Active:    01  09  25  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  21

Years Contracted:  4 

Education Level:  12	(attendance based)		AFQT:  54

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks)*:

Performance:  3.0 (2)	Behavior:  3.0 (2)		OTA:  3.00 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214)**:  Sea Service Deployment Ribbon, Armed Forces Service Medal, NATO Medal, Battle “E” Ribbon

*Derived from Applicant’s submission
**Service record also indicates Letter of Commendation x 2.

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

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

Chronological Listing of Significant Service Events: 

980424:	NJP for violation of UCMJ, Article 92 (2 specs):  Dereliction of duties, failure to properly use government American Express card.
Award:  Extra duty for 45 days, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

980504:	Counseled for deficiencies in performance and conduct.  (Violation of the UCMJ, Article 92 (Dereliction in the performance of duties.)  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980715:	Civil conviction:  Applicant pled guilty to Assault (Class D offense) on 980714, in State of Maine, Division of Bath-Brunswick Court.
	Sentence: $200.00 fine.

980723:	Reduction in pay grade awarded and suspended at NJP on 980424 vacated due to continued misconduct.

980723:	NJP for violation of UCMJ, Article 123a:  Making, drawing, or uttering check, draft, or order without sufficient funds.
	Specification:  In that AN L_ P. M_, USN (Applicant), Patrol Squadron EIGHT, NAS Brunswick, Maine, on active duty, did, in or about Brunswick, Maine from or about 971115 to about 971224, with intent to defraud and for the procurement of merchandise, wrongfully and unlawfully make to various local merchants, certain checks upon the Navy Federal Credit Union in words and figures as follows, to wit:  $376.31 to Walmart; $246.95 to All State Glass; $83.25 to VIP; $331.83 to T.J. Max, then knowing that she the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the said checks in full upon its presentment.
	Award:  Forfeiture of $1/2 pay per month for 1 month.  No indication of appeal in the record.

980724:	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 commission of a serious offense, misconduct due to a pattern of misconduct and misconduct due to civilian conviction.

980724:	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.

980731:	Commanding Officer, Patrol Squadron 8, UIC: 09661, informs Chief of Naval Personnel of Applicant’s discharge with a general (under honorable conditions) by reason of misconduct due to a pattern of misconduct, misconduct due to a commission of a serious offense and misconduct due to civilian conviction.  Commanding Officer’s comments:  “AA M_ (Applicant) failed to meet the standards of conduct which are integral to the good order and discipline of the Naval service.  She committed numerous violations of the UCMJ, including a civilian conviction for assault.  Her counseling record contains numerous instances of failure to keep the chain of command informed of personal and work related problems.  She has been thoroughly counseled regarding these deficiencies yet has made no noticeable progress toward correcting same.  AA M_ is either unable or unwilling to conform to the regulations and standards of conduct of the U. S. Navy.  I am administratively separating AA M_ with a General Under Honorable Conditions characterization of service.”

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 19980731 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 retention warning, 2 nonjudicial punishment proceedings for violations of Articles 92 and 123a of the UCMJ, and a civil conviction for assault (also a violation of Article 128 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 Article 123a and 128 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 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 following is provided for the edification of the Applicant.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.    Nor does the NDRB have jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces.  The NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Reenlistment policy of the Naval service or Marine Corps is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054   An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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.  As of this time, the Applicant has not provided any post-service documentation to consider mitigating the misconduct that resulted in the characterization of 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), Change 18, effective 
12 Dec 97 until 29 March 2000, 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 123a, Making, drawing, or uttering check, draft, or order without sufficient funds, and 128, Assault.

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