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Docket No. ND05-00802

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

FOR OFFICIAL USE ONLY

 ex-AM3, USN
Docket No. ND05-00802

Applicant’s Request

The application for discharge review was received on 20050407.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “GOOD CONDUCT.”  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 20051013.  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 and reason for discharge shall not change.  The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to a pattern of misconduct.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the attached letter:

“Dear Sir/Ma, 

Re:  Discharge Review (Docket Number ND05-00802)
I did mail in an application for discharge review.
I am by this requesting that (1) My Re-entry code be upgrade from “RE4 to RE1.”
(2) Please change the narrative reason for separation from a “pattern of misconduct” to good Conduct.
(3) Please change the character of service from “General Under honorable Conditions” to Honorable.
I cannot really explain it here but my medical and service records have it all.  Thank you and may God bless you.

Sincerely yours,

[signed] E_, E_ (Applicant)”

Documentation

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

Applicant’s DD Form 214  (Service 2)
Ltr from Applicant, undated  (2 pages)
Previous DD Form 293, dated May 02, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20000607 - 20000622	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20000623		Date of Discharge:  20040301

Length of Service (years, months, days):

	Active:    03  08  09  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  26

Years Contracted:  4 

Education Level:  16				AFQT:  89

Highest Rate:  AM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.3 (3)		Behavior:  2.7 (3) 			OTA:  2.6

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy Good Conduct (Period Ending 20030622), National Defense Service Medal

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

GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority:  MILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events: 

020805:	Medical evaluation:
	DD Form 2808, Block 73, notes:
	“Physically patient appears to be in excellent health.  Patient had been diagnosed by the mental health department NHOH Psychotic Disorder NOS.  He has been determined to be unfit for military service.  Physical evaluation board pending.  Patient strongly disagrees w/ diagnosis.  Feels any “mental” problems were related to his anti-psychotic medications or over exposure to Jet Fuel.”

021105:	Medical evaluation:
DD Form 2807-1, Block 30a, comments:
“Has shortness of breathe with Haloperidol/Risperidol/ Zepeda “Brain and Mind can not Connect.”
	- All yes answers on this form are related to the use of Anti-psychotic medications per the patient.
	- He repeatedly admits that he disagrees with his psychiatric diagnosis.  And does not require medication.
	- He is currently not taking any medication.
	- With regard to his psychiatric diagnosis please refer to his dictated psychiatric summary.
	- Patient does not wish to be separated from the Navy.”

031215:	Retention Warning:  Advised of deficiency (V/UCMJ Article 86: Unauthorized absence, and V/UCMJ, Article 92: Failure to obey an order), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

031215:	NJP for violation of UCMJ, Article 92: Failure to Obey an Order.
	Violation of UCMJ, Article 86:  Unauthorized absence.
	Award:  Extra duty for 30 days, reduction to E-3 (suspended for 6 months).  No indication of appeal in the record.

040115:	Reduction in pay grade awarded at NJP on 031215 vacated due to continued misconduct.

040120:	NJP for violation of UCMJ, Article 86 (5 specs):  
	Specification 1: In that Aviation Structural Mechanic Airman E_ J. E_ (Applicant), Fleet Air Reconnaissance Squadron ONE, on active duty, did, on or about 0700, 16 December 2003, fail to go to this appointed place of duty, to wit: VQ-1 1^st Lieutenant, Hangar 6, Naval Air Station Whidbey Island, WA.
	Specification 2: In that Aviation Structural Mechanic Airman E_ J. E_ (Applicant), Fleet Air Reconnaissance Squadron ONE, on active duty, did, on or about 0700, 5 January 2004, fail to go to this appointed place of duty, to wit: VQ-1 1^st Lieutenant, Hangar, Naval Air Station Whidbey Island, WA.
Specification 3: In that Aviation Structural Mechanic Airman E_ J. E_ (Applicant), Fleet Air Reconnaissance Squadron ONE, on active duty, did, on or about 0700, 8 January 2004, fail to go to this appointed place of duty, to wit: VQ-1 1^st Lieutenant, Hangar, Naval Air Station Whidbey Island, WA.
Specification 4: In that Aviation Structural Mechanic Airman E_ J. E_ (Applicant), Fleet Air Reconnaissance Squadron ONE, on active duty, did, on or about 0700, 13 January 2004, fail to go to this appointed place of duty, to wit: VQ-1 1^st Lieutenant, Hangar, Naval Air Station Whidbey Island, WA.
Specification 5: In that Aviation Structural Mechanic Airman E_ J. E_ (Applicant), Fleet Air Reconnaissance Squadron ONE, on active duty, did, on or about 0700, 20 January 2004, fail to go to this appointed place of duty, to wit: VQ-1 1^st Lieutenant, Hangar, Naval Air Station Whidbey Island, WA.
	Award:  Extra duty for 30 days, reduction to E-2.  No indication of appeal in the record.

040120:	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 pattern of misconduct.

040120:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

040120:	Commanding Officer, Fleet Air Reconnaissance Squadron One, authorized the Applicant’s general (under honorable conditions) discharge by reason of misconduct due to a pattern of misconduct.

The Applicant’s medical record was not available for review.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040301 by reason of misconduct due to a pattern of misconduct (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).

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 and two nonjudicial punishment proceedings for violations of Articles 86 and 92 of the UCMJ.  The Applicant’s violation of Article 92 is considered the commission of a serious offense.  The Applicant’s reduction in pay grade awarded at NJP on 20031215 was vacated on 20040115 due to the Applicant’s continued misconduct.  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’s service record reveals a retention warning followed by two nonjudicial punishment proceedings.  The Applicant met the Naval Military Personnel Manual’s requirements for processing by reason of pattern of misconduct.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable.  Relief denied.

The Applicant states, “my medical and service records have it all.”  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  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.  Relief denied.  

The Applicant should be aware that whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative separation for misconduct, the disability evaluation is suspended.  SECNAVINST 1850.4 E  stipulates that separations for misconduct take precedence over potential separations for other reasons.  

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  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.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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. 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 2002 until 25 April 2005, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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 a lawful 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 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