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

FOR OFFICIAL USE ONLY

 ex-DA, USN
Docket No. ND06-00979

Applicant’s Request

The application for discharge review was received on 20060726.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area.  The Applicant designated the American Legion as the representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. Metropolitan area on 20070815.  The Board deliberated and voted in the case on 20070823.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB determined that there was inequity in the Applicant’s Narrative Reason for Separation.  The Board’s vote was unanimous that the reason for discharge shall change to MISCONDUCT - PATTERN OF MISCONDUCT.  The characterization of discharge shall remain GENERAL (UNDER HONORABLE CONDITIONS).  The Applicants discharge is changed to GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT - PATTERN OF MISCONDUCT, authority: MILPERSMAN 3630600, Separation Code “HKA.”

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

1.  Propriety Issue – Former member was given serious misinformation during his discharge process which included him being lied to about the need to have an attorney.

2.  Propriety Issue – Former member was lied to by his chain of command in regards to the conditions of his discharge, opportunities for reserve service, and veterans benefits.

3.  Propriety Issue – Former member was lied to about his discharge being automatically upgraded after six months.

4.  Equity – Former member requests the Board to consider provisions of 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 (Member 4)
Applicant’s Social Security Statement, dated January 24, 2006
Letter to Applicant from J_ P. D_, CPA, dated April 13, 2006
Applicant’s 2005 Federal Income Tax Return and Summary (2 pages)
Letter to Applicant from J_ P. D_, CPA, dated April 7, 2005
Applicant’s 2004 Federal Income Tax Return and Summary (2 pages)
Acceptance letter to Applicant from Villanova University, dated March 21, 2006
Character Reference Letter from A_ D. L_, R.D.H., M. Ed, Dental Director, Community Volunteers in Medicine, dated May 22, 2003
Applicant’s School of Dentistry certificate for outstanding contribution and exceptional service, dated May 21, 1997
Applicant’s North East Regional Board of Dental Examiners certificate of performance for 2003
Certificate of authorization from Commonwealth of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs for Applicant to practice as a Dental Hygienist, dated February 11, 2003
Applicant’s Associate in Science degree, dated May 25, 2002
Applicant’s dental hygienist license from the Commonwealth of Pennsylvania, Department of State, Bureau of Professional and Occupational Affairs, issued February 11, 2003
Letter of support of application for Dental Hygiene school from J_ I. J_, Captain Retired Navy Dentist, Associate Professor, dated December 1, 1997
Letter of recommendation for training as a dental hygienist from L_ J. T_, DDS, MS, F.A.C.P., Lieutenant Colonel, Dental Corps (Retired), Director, Fixed Prosthodontic Clinic, Temple University School of Dentistry, dated December 5, 1997
Letter of Thanks to Stand Down 2001 Volunteer, dated September 9, 2001
Appointment of Veterans Service Organization, dated July 23, 2006
Character reference letter from Reverend Monsignor T_ M. M_, dated August 13, 2007
Letter from Lieutenant D_ L. S_, Missouri River Drug Task Force
Student Identification card from Villanova University
Letter of Recommendation from E_ J. V_, DMD MAJ(P) DC, Department of the Army, Headquarters, Landstuhl Dental Activity
Letter from R_ H. U_, Commissioner, Bureau of Professional and Occupational Affairs, Commonwealth of Pennsylvania, dated August 8, 1994

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19890524 - 19890525	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19890526		Date of Discharge:  19910802

Length of Service (years, months, days):

	Active:    02  02  07
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  19

Years Contracted:  4 (12-month extension)

Education Level:  12				AFQT:  85

Highest Rate:  DN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.4 (2)			Behavior:  3.5 (2)		OTA:  3.50

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

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

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct - commission of a serious offense, authority:  MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events: 

901002:	Retention Warning:  Advised of deficiency (You went to Executive Officer’s Inquiry on 901002 for violation of UCMJ Article 92; disobeying a lawful order.  You are directed to muster onboard Branch Dental Clinic Bldg. 152 at 0645 each work day for a period of 30 workdays in lieu of referral of your case for nonjudicial punishment.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910228:	NJP for violation of UCMJ, Article 134: False or unauthorized government pass.
Violation of UCMJ, Article 92: Disobeying a lawful order.
	Award:  Forfeiture of $100.00 per month for 2 months, extra duty for 30 days, reduction to E-2.  Reduction suspended for 6 months.  No indication of appeal in the record.  [Extracted from NAVPERS 1070/6, Administrative Remarks dated 910228.]

910228:	Retention Warning:  Advised of deficiency (You went to Captain’s Mast on 910228 for violation of the UCMJ Article 134; false or unauthorized government pass, and violation of UCMJ Article 92; disobeying a lawful order.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910521:	NJP for violation of UCMJ, Article 92: Disobeying a lawful written order.
Violation of UCMJ, Article 134: Dereliction of duty.
	Award:  Oral admonition.  No indication of appeal in the record.  [Extracted from NAVPERS 1070/6, Administrative Remarks 910521.]

910521:	Retention Warning:  Advised of deficiency (You went to Captain’s Mast on 910521 for violation of UCMJ Article 92: Disobeying a lawful written order and Article 134: Dereliction of duty.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910710:	NJP for violation of UCMJ, Article 92: Failed to obey a lawful written order.
Violation of UCMJ, Article 134: Dereliction of his in that he failed to report to traffic court.  Dismissed.
	Award:  Forfeiture of $200.00 per month for 2 months, extra duty for 15 days, reduction to E-2.  No indication of appeal in the record.

910722:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense.

910725:	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.

910806:	Commanding Officer notified Chief of Naval Personnel (PERS 8322) of Applicant’s discharge with a under honorable conditions (general) by reason of misconduct due to commission of a serious offense.

911011:	BUPERS notified Commanding Officer, NAVDENCEN Great Lakes, IL that Applicant did not qualify for discharge under authority delegated.  BUPERS is separation authority for discharges requiring administrative board procedures.  No further action required.

990419:	NDRB documentary record review Docket Number ND98-00915 conducted.  Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19910802 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, but is not convinced that his narrative reason for separation is equitable given the nature of the misconduct in this case (C and D).  The Board determined that a change in the discharge characterization to fully honorable is not warranted.  The Board presumed regularity in the conduct of governmental affairs (E).

After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discovered there was no impropriety in the characterization of the Applicant's service or the assigned reason for discharge at the time of discharge.  However, the Board determined that his narrative reason for separation was inequitable given the nature of the misconduct in this case.  The Board voted to change the Narrative Reason for Separation to Misconduct – Pattern of Misconduct because it more accurately reflects the Applicant’s service than his current Narrative Reason for Separation. 

Issues 1 -3 (Propriety):  The Applicant alleges impropriety in his discharge process.  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 his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support his contention that his command misled him or provided misinformation during his discharge process.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  

Issue 4 (Equity):  The Applicant provided extensive evidence of post service conduct in support of his request for upgrade.  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 re-characterization 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 mitigating but not sufficient to support an upgrade to fully honorable.  

The NDRB did note a technical error in the Applicant’s separation processing.  The record indicates that the Applicant was discharged by his command before being directed by BUPERS.  Nevertheless, the NDRB is convinced that this procedural error was not prejudicial to the Applicant and therefore affords him no relief.  There is little doubt to the NDRB that the discharge would have remained the same if the error had not been made and thus relief based upon this error is not warranted.

The following is provided for the edification of the Applicant.  The Applicant has exhausted his opportunities for review by the NDRB.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of Naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A), Change 8, effective 
21 Aug 89 until 14 Aug 91, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 134 (false pass) and 92 (failure to obey an order).

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