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

FOR OFFICIAL USE ONLY

ex-MMC, USN
Docket No. ND06-00893

Applicant’s Request

The application for discharge review was received on 20060622.  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 20070405.  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

Applicant Issues

The Applicant is requesting his current discharge be upgraded to honorable.

The Applicant is claiming quality of service equity as the bases for his upgrade request.

The Applicant is claiming Post-service equity in his request for a discharge characterization upgrade.

The Applicant is requesting an upgrade for G.I. Bill benefits.

Documentation

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

Letter from Applicant, dtd September 12, 2006 (4 pgs)
Applicant’s DD Form 214 (Service 2)
Applicant’s DD Form 214 (Member 4)
Excerpts from Service Record (11 pgs)
Medical Documents (19 pgs)
Suspect’s Rights Acknowledgement/Statement (5 pgs)
Statement to the Record for Fitness Report, dtd June 23, 2005 (2 pgs)
Post Separation Accomplishments Statement
Department of Veterans Affairs Disability Claim Decision (3 pgs)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19910509 - 19911210	COG
	Active:   USN	19911211 - 19970107	HON
	Active:   USN	19970108 - 19990502	HON
	Active:    USN	19990503 - 20030130	HON

Period of Service Under Review:

Date of Enlistment:  20030131		Date of Discharge:  20050908

Length of Service (years, months, days):

	Active:    01  07  08  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  25 days 
	Confinement:		  None

Age at Entry:  31 

Years Contracted:  5 

Education Level:  12				AFQT:  96

Highest Rate:  MMC

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.0 (3) 		Behavior:  4.0 (3)			OTA:  4.81 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy and Marine Corps Achievement Medal (7), Navy Unit Commendation, Navy Battle “E” Ribbon (2), Navy Good Conduct Medal (3), Navy Expeditionary Medal (2), National Defense Service Medal (2), Southwest Asia Service Medal, Sea Service Deployment Ribbon (2), Global War on Terrorism Service Medal, Enlisted Submarine Service Qualified

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: 

030131:	Reenlisted this date for a term of 5 years.

050526:	Applicant presented to the Naval Medical Center, San Diego (NMCSD) 1-West ward as a direct admit via Medevac from Singapore.

050527:	Medical evaluation at Fleet Mental Health, Branch Medical Clinic, NAVSTA, San Diego, following psychiatric hospitalization at NMCSD.
	AXIS I: Major Depressive Disorder, moderate, single episode
	AXIS II: None
	AXIS III: None
	AXIS IV: Occupational Problems, Problems with primary support
	AXIS V: GAF (current) 51-60 moderate symptoms
	Fitness for duty:  Patient is to return to full duty with no restrictions.

050609:	NJP for violation of UCMJ, Article 87:
	Award:  Oral admonition, reprimand in writing, restriction to NBPL for 60 days (suspended), forfeiture of ½ months pay for 1 month.  No indication of appeal in the record.

050610:	Follow-up medical evaluation at Fleet Mental Health, Branch Medical Clinic, NAVSTA, San Diego:
	AXIS I: MDD, moderate, single episode
	AXIS II: Defer
	AXIS III: None known No pain reported
	AXIS IV: Occupational stressors
	AXIS V: GAF (current) 70
	
050615:	Follow-up medical evaluation at Fleet Mental Health, Branch Medical Clinic, NAVSTA, San Diego:
	AXIS I: MDD, moderate, single episode
	AXIS II: Defer
	AXIS III: None known No pain reported
	AXIS IV: Occupational stressors
	AXIS V: GAF (current) 70
	
050616:	Punitive Letter of Reprimand for violation of Article 87 of the UCMJ for missing movement.  You missed ship’s movement on 050514 by neglect.

050731:	Commenced an unauthorized absence, civilian confinement at San Diego Central Jail, San Diego for inflicting corporal injury upon spouse, PC237(a)-False Imprisonment, PC136.1(B)(1)-Attempting to prevent or dissuade a victim from reporting a crime, and PC59-Damaging telephone lines.

050812:	Administrative Remarks: MMC O_, pled guilty to inflicting corporal injury upon his spouse, false imprisonment, attempting to prevent or dissuade her to report a crime, and damaging telephone lines. At his arraignment, the judge stated that if MMC O_ were released, he would be a possible danger to himself; therefore, the judge ordered MMC O_ be confined at the San Diego Central Jail until his next court hearing on 050912.  MMC O_ waived his right to an Administrative Hearing.  [Extracted from Commander, Submarine Squadron 11 ltr to Commander Submarine Force, U.S. Pacific Fleet] 
 
050826:	Commanding Officer recommended discharge with a general (under honorable conditions) by reason of misconduct - commission of a serious offense and misconduct - civilian conviction.

050826:	GCMCA, Commander, Submarine Force, U.S. Pacific Fleet directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct commission of a serious offense.

Service Record contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050908 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 is claiming quality of service equity as a basis for his upgrade request.  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 one punitive letter of reprimand, and one nonjudicial punishment proceeding for violation of Article 87 (Missing movement) of the UCMJ.  Additionally, the Applicant commenced an unauthorized absence due to civilian confinement at San Diego Central Jail for inflicting corporal injury upon his spouse, false imprisonment and attempting to prevent his spouse from reporting a crime.  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 Applicant is requesting an upgrade based on post service accomplishments.  The following is provided for the edification of the Applicant.  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 is requesting an upgrade for G.I. Bill benefits. The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board (NDRB).  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.  
 
After a thorough review of the record, it was determined the administrative separation package was missing some elements.  In this case the NDRB presumes regularity in the conduct of governmental affairs.

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 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 87 (Missing movement) 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.

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