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Docket No. ND06-00426

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

FOR OFFICIAL USE ONLY

ex-SA, USN
Docket No. ND06-00426

Applicant’s Request

The application for discharge review was received on 20060130.  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 20061130.  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 characterization of the 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 application and attached letter:

“I J_ E_ would like to upgrade my Discharge to Honorable, in order to receive my MGIB Benefits.”

“When I made the choise to get out After my visit to the Er from 2^nd Deg Burns.  I was told by my senior enlisted advisor that I would recive all MGIB Benefits.  My last Captain Mast was in Result of this.  I was physically assaulted by another crew member in which he threw 207 Deg water on me as Joke I was made as an example and charge with simple assult to comtribing to assumption of Horse play.

“I J_ E_ (Applicant), would like to say that my (PQ5) Person Qualification Standards was up to par with most E-4 and some E-5’s.  I qualified to wear my enlisted Surface Warfare Insignia in a year and a half.  My DC quaification were above advage for an E-3.  My Professional Achievment was Superior, But I did have small adjustment problems.  I can’t make up the past from my mistake’s, But only look Forward and hope you can find it in your Hearts to let me recieve my MGIB, So I can Finish my electrician Degree.  I have included a KCTCS for of Resident Fees to support my explanation.  Thanks for your time.”

Documentation

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

Applicant’s DD Form 214  (Member 4) and (Member 1)
Receipt from Elizabethtown Community and Technical College, dtd August 9, 2005
Applicant’s JUMPS LES Online Inquiry System  (16 pages)
Routine Reply, Endorsement, Transmittal or Information Sheet
Thirteen (13) pages of Applicant’s Medical records
Personnel Qualifications Standards (PQS)
Citation for professional achievement in the superior performance of his duties
Personnel Qualifications Standards (PQS)
Certificate for being a Qualified Enlisted Surface Warfare Special Specialist, dtd July 16, 2002
Administrative Remarks, dtd March 10, 2004
Completed requirements for Adult CPR/AED, Louisville Area KY, completed on August 31, 2004
Completed requirements for Standard First Aid, Louisville Area KY, completed on August 31, 2004
Character Reference ltr from G_ P_, Operations Manager, dtd June 2, 2006
Copies of Applicant’s grades from school as an undergraduate, dtd May 30, 2006  (3 pages)
 Departmental Instructor Certificate for Mechanical Advantage Subject Control, dtd January 20^th 2005
Applicant’s Schedule of classes, Spring 2007
Character Reference ltr from C_ M. M_, dtd November 14, 2006
Fax Cover sheet
Award from Clearview Baptist church, dtd June 19, 2005
Character Reference ltr from J_ R_, Bill’s Marina, dtd October 26, 2006
Fax Cover Sheet
 
PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20000808 - 20001030	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20001031		Date of Discharge:  20040514

Length of Service (years, months, days):

	Active:    03  06  14
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  17 (Parental Consent)

Years Contracted:  4

Education Level:  12				AFQT:  29

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (5)		Behavior:  2.0 (5)		OTA:  2.73

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, Meritorious Unit Commendation Ribbon

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: 

010214:	NJP for violation of UCMJ, Article 92:
Specification:  Underage drinking
	Award:  Forfeiture of $51.00 pay per month for 1 month, restriction and extra duty for 16 days (Suspended for 7 days for 6 months).  No indication of appeal in the record.

010629:	NJP for violation of UCMJ, Article 86:
	Specification: Absence without leave
Award:  Forfeiture of $100.00 pay per month for 1 month, restriction and extra duty for 30 days.  No indication of appeal in the record.

040418:	Applicant returned to the Emergency Room at Emergency Care & 
Treatment – MC Portsmouth, VA for pain.

040418:	Light Duty Chit:  Applicant had been placed on light duty for a period of no less than 7 days/until blisters and burns healed.

040420:	MC Portsmouth, VA, Medical evaluation by D_ R_ Independent Duty Corpsman, HM1 (FMF) USN:  20 year old Caucasian male complaining of f/u Burn to back and neck.  Patient (Applicant) has been receiving dressing changes for 2^nd and 1^st degree, burns to back and neck.  Patient was evaluated and treated on April 17 at NMCP and Dx with 12% total BSA burns, with 5% being 2^nd degree burns.  Patient doing well, tolerating pain with vicodin oral tabs Q4-6hrs.  Patient also taking Motrin 800mg in between for pain tolerance.  Patient has xerofoam gauze dressing covering areas with Kerlex wrap holding in place.  States he is staying well hydrated orally on own.
	A:  948 Burns classified according to extent of body surface involved
	1^st and 2^nd degree burns to back and neck
	P:  1.  Dressing change completed, pt tolerated procedure well.
	     2.  Cont drsg change Qd
	     3.  Report to S_ point BMC for refill of Vicodin
	     4.  F/U here for changes in conditions, otw qd for drsg change.
	Limitations:  No duty until wounds heal well enough to wear uniform

040512:	Applicant is qualified for military separation.
		Current unresolved medical issue:  retaining the scars left of 2 burns.

040514:	NJP for violation of UCMJ, Article 89:
		Specification:  Disrespect towards a Superior Commissioned Officer
		Violation of UCMJ, Article 128:
		Specification:  Simple Assault
[Extracted from Evaluation Report & Counseling Record dtd 030716 to 040513 under comments on performance.]

040514:	DD Form 214: Applicant discharged with a General (Under Honorable Conditions) by reason of misconduct due to a pattern of misconduct, authority:  MILPERSMAN 1910-140.

Service Record did not contain the Administrative Discharge package. 
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 20040514 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).

The Applicant claims that his Professional achievement was superior, but he did have small adjustment problems.  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 3 non-judicial punishment proceedings for violations of Articles 86 (unauthorized absence), 89 (Disrespect towards a Superior Commissioned Officer), 92 (underage drinking), and 128 (Assault) of the UCMJ.  Although the administrative separation package was not a part of the Applicant’s record 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.  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 in order to receive the Montgomery G.I. Bill so he can finish his electrical degree.  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 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.  

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), 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, Articles 86 (unauthorized absence), 89 (Disrespect towards a Superior Commissioned Officer), 92 (underage drinking), and 128 (Assault) of the UCMJ.

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