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

FOR OFFICIAL USE ONLY

ex-BMSA, USN
Docket No. ND06-00816

Applicant’s Request

The application for discharge review was received on 20060601.  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 20070315.  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

	No decisional issues.

Documentation

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

Applicant’s DD Form 214 (Member 4) (2)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20020403 - 20020416	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20020417		Date of Discharge:  20050805

Length of Service (years, months, days):

	Active:    03  03  19
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  20

Years Contracted:  4

Education Level:  12				AFQT:  53

Highest Rate:  BMSN

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):  National Defense Service Medal, Sea Service Deployment Ribbon.

* Not Available

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

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

Chronological Listing of Significant Service Events: 

030219:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful order or regulation.
	Award:  Restriction and extra duty for 45 days, reduction to E-1.  Reduction suspended for 3 months.  No indication of appeal in the record.

030219:	Retention Warning:  Advised of deficiency (Failure to obey a lawful order or regulation.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

040330:	NJP for violation of UCMJ, Article 134: Conduct prejudice to good order and discipline.
	Award:  Forfeiture of $733.00 per month for 1 month, restriction and extra duty for 45 days, reduction to E-2.  Reduction suspended for 60 days.  No indication of appeal in the record.

040528:	Applicant completed alcohol treatment.

050707:	NJP for violation of UCMJ, Article 86: Absence without leave.
Violation of UCMJ, Article 92: Failure to obey order or regulation.
Violation of UCMJ, Article 107: False official statements.
Violation of UCMJ, Article 134: Disorderly conduct, drunkenness.
	Award:  Forfeiture of $692.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  Forfeiture suspended for 6 months.  No indication of appeal in the record.

050725:	Forfeiture of pay awarded at NJP on 050707 vacated due to continued misconduct.

050805:	DD Form 214:  Applicant discharged with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense, authority:  MILPERSMAN 1910-142.

Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050805 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).  The Board presumed regularity in the conduct of governmental affairs (E).

The Applicant desires an upgrade based on quality of service.  When a member’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  Characterization of service as general (under honorable conditions) 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.  There is irrefutable evidence that the Applicant’s conduct during his time in the service was not honorable.  Indeed, the Applicant’s records contain:
•	Nonjudicial punishment proceedings on 20030219 for violation of UCMJ Article 92 Failure to obey order or regulation;
•	Retention warning entry on 20030219 for deficiencies in performance and conduct concerning his failure to obey;
•	Nonjudicial punishment proceedings on 20040330 for violation of UCMJ Article 134 Conduct prejudicial to good order and discipline; and
•	Nonjudicial punishment proceedings on 20050707 for violation of UCMJ Article 86 Unauthorized absence, Article 92 Failure to obey order or regulation, Article 107 False official statements, and Article 134 Drunkenness.
Violation of Articles 92 and 107 are serious offenses for which a punitive discharge is authorized under Appendix 12 of the Manual for Courts-Martial and typically warrants a characterization of service as under other than honorable conditions.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls well below that required for an honorable characterization of service.  Relief denied.

The Applicant is advised that 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 or enhancing employment and educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  Since these issues do not provide a foundation upon which the Board can grant relief, relief on this basis is not warranted.

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 post-service accomplishments or any other evidence related to the 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 11, effective 
26 April 2005 until Present, Article 1910-142, 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, Article 92 Failure to obey order or regulation and Article 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.

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