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Docket No. ND06-00666

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

FOR OFFICIAL USE ONLY

ex-SHSR, USN
Docket No. ND06-00666

Applicant’s Request

The application for discharge review was received on 20060419.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and/or the Narrative Reason for Separation be changed to “HARDSHIP MEDICAL REASON.”  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 20070201.  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 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

Applicant Issues, 

The Applicant claims appointments to see medical physician along with subsequent medical attention was not taken seriously until after non-judicial punishment.

The Applicant is also seeking an upgrade for employment reasons and an opportunity to re-enter active service.

Documentation

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

Applicant’s Resume  (2 pages)
Orientation from Goodwill, Ms. S_, Workforce Development Specialist, dtd January 16, 2007
Eligibility Notice, Michigan Department of Human Service  (2 pages)
Goodwill First Staff Listing
State of Michigan, Department of Human Services, Notice of case action, dtd January 10, 2007
Verification of Birth from Henry Ford Hospital, Birth Specialist/Medical Records, K_ P_, dtd July 27, 2006
Ltr from Applicant, dtd March 27,2006
Claim information from the State of Michigan, Department of Consumer & Industry Services, Unemployment Agency, dtd October 15, 2004    (4 Pages)
Applicant’s DD Form 214   (Member 4)  (Member 1)
Information about Unemployment Compensation for Federal Employees (UCFE (Civilian employees of the federal government
Ltr from D_ L. B_, Education Officer, Department of Veterans Affairs, dtd January 28, 2005  (2 pages)
Transmission Verification Report, dtd January 3, 2006
15 pages of Applicant’s Service Record

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20011221 - 20020325	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20020326		Date of Discharge:  20040915

Length of Service (years, months, days):

	Active:    02 05  20  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  2 days
	Confinement:		  None

Age at Entry:  19

Years Contracted:  4 (12-month extension)

Education Level:  12				AFQT:  39

Highest Rate:  SHSA

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

* Not Available

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: 

030827:	NJP for violation of UCMJ, Article 86:  Unauthorized Absence
Specification:  On or about 0700, 030819, without authority, go from her appointed place of duty, to wit:  USS ROSS, and did remain so absent until on or about 1640, 030819.
	Award:  Restriction and extra duty for 15 days.  No indication of appeal in the record.

030827:	Retention Warning:  Advised of deficiency (Commanding Officer’s NJP of 030827 for UCMJ, Article 86 (Unauthorized Absence)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

031123:	Counseled for deficiencies in performance and conduct.  (Failure to meet body composition assessment standards and Failure to meet physical readiness test standards.  In the most recent 4 years this is the 3^rd failure to meet standard.)  Necessary corrective actions explained, sources of assistance provided and disciplinary warning issued.

040129:	Applicant diagnosed by competent medical authority at Naval Medical Center Portsmouth on 20040129.
	AXIS I: Dysthymic Disorder
		  Occupational Problem
	Plan: Applicant is fit for full duty and may return to parent command.  Should emergency arise, Applicant was instructed to call 911 or go to ER. [Document submitted by Applicant]

040202:	Missed sailing on vessel from Norfolk, VA., on this date enroute to Naval Weapons Stations Yorktown.

040203:	NJP for violation of UCMJ, Article 86: 
Specification 1:  In that K_ J. H_, SHSN (Applicant) USN, did on or about 0700, 040113, without authority absent herself from her place of duty at which she was required to be, to wit:  Liberty expires onboard USS ROSS and did remain so absent until on or about 0930, 040115.
Specification 2:  In that K_ J. H_, SHSN, USN, did, on or about 040202, without authority, fail to go at the time prescribed to her appointed place of duty, to wit: Liberty expired onboard USS ROSS at 0700 and did so remain absent until on or about 0318, 040203.
Specification 3:  In that K_ J. H_, SHSN, USN, did, on or about 040203, without authority, fail to go at the time prescribed to her appointed place of duty, to wit:  Divisional quarters at 0715 and remain so absent until on or about 0930, 040203.
Charge 2:  UCMJ Article 87 Missing Movement:
Specification:  In that K_ J. H_, SHSN, USN, did, on or about 040202, through design miss the movement of the USS ROSS with which she was required in the course of duty to move.
	Award:  Restriction for 60 days, reduction to E-2.  No indication of appeal in the record.

040203:	Retention Warning:  Advised of deficiency (Commanding Officer’s NJP of 040203 for UCMJ, Article 86 (Absent without leave); and Article 87 (Missing Movement.)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

040204:	Counseling:  Advised of deficiency (About 0715, 040203, without authority, absent herself from her unit at which she was required to be, to wit:  USS ROSS (DDG 71), located at Naval Weapons Station Yorktown, Yorktown, VA and did remain so absent until on or about 0930, 040203.  A period of about 2 hours 15 minutes.), notified of corrective actions and assistance available.

040325:	Applicant diagnosed by competent medical authority at Naval Medical Center Portsmouth on 20040325.
	AXIS I: Dysthymic Disorder
		  Occupational Problem
	Plan: Applicant is fit for full duty and may return to parent command.  Should emergency arise, Applicant was instructed to call 911 or go to ER. [Document submitted by Applicant]

040807:	NJP for violation of UCMJ, Article 86:  Absence without leave
	Specification 1: On or about 040726 without authority, go from her appointed place of duty, to wit:  ships laundry from 0800-1130 and from 1300-1600.
	Specification 2:  On or about 040727, without authority, go from her appointed place of duty, to wit:  ships laundry from 0800-1130 and from 1300-1600.
	Specification 3:  On or about 040728, without authority, go from her appointed place of duty, to wit:  Ships laundry from 0800-1130 and from 1300-1600.
Charge II:  Violation of UCMJ, Article 89:  Disrespect toward a superior commissioned officer.
Specification:  On or about 040728, behave herself with disrespect toward E_ M. S_, ENS, USNR, a commissioned officer, then known by the said SHSA H_, to be a commissioned officer, by contemptuously turning from and leaving her while she, the said ENS S_, was talking wither, the said SHSA H_.
Charge III:  Violation of UCMJ, Article 92:  Dereliction of Duty
Specification:  On or about 040726 to on or about 040728, was derelict in the performance of those duties in that she willfully failed to do ships laundry, as it was her duty to do.
	Award:  Forfeiture of 1/2 month pay for 1 month, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

040807:	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 a pattern of misconduct.

040807:	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.

040813:	Commanding Officer, recommended discharge with a general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.  Commanding Officer’s comments:  “I have transferred SHSR H_ (Applicant) to Transient Personnel Unit, Norfolk to be discharged under the authority granted to me in MILPERSMAN 1910-704 with a General (Under Honorable Conditions) Discharge.

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 20040915 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 Applicant claims appointments to see medical physician along with subsequent medical attention was not taken seriously until non-judicial punishment.  After a review of the Applicant’s medical records, it was discovered that the Applicant was diagnosed on 20040129 and again on 20040325 by competent medical authority at Naval Medical Center Portsmouth.  The applicant was diagnosed with Dysthymic Disorder and Occupational Problems.  The Applicant was considered fit for full duty and was instructed to go to the ER if an emergency occurred.  When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  The NDRB generally does not consider the circumstances surrounding the Applicant’s stated condition, the implied incorrect diagnosis, nor the medical treatment given to the Applicant to be of sufficient nature to exculpate the Applicant’s misconduct.  In fact, the NDRB sees no connection between the Applicant’s misconduct and her medical condition.  Relief is not warranted.

The Applicant is also seeking an upgrade for employment reasons and an opportunity to reenter active service.  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.  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.  Relief denied.

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, Article 87 (Missing movement), 89 (Disrespect toward a superior commissioned officer) and 92 (Dereliction in performance of duties).  

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.

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