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Docket No. ND06-00687

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

FOR OFFICIAL USE ONLY

ex-SR, USN
Docket No. ND06-00687

Applicant’s Request

The application for discharge review was received on 20060427.  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 20070208.  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 Under Other Than Honorable Conditions by reason of misconduct due to a pattern of misconduct.

The NDRB did note administrative error(s) on the original DD Form 214.  Block 24, Character of Service, should read:  “UNDER OTHER THAN HONORABLE CONDITIONS.”  The Commander, Navy Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - ISSUES AND DOCUMENTATION

Applicant Issues

The Applicant claims he did not know he had disabling issues.  He states “The Navy did not know either and did not have me examined to rule out any medical problems.”  The Applicant is requesting a documents review with an upgrade of honorable.  The Applicant contends the Navy dismissed him without due course.  

Documentation

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

Applicant’s DD Form 214 (State Director of Veterans Affairs 6)
Tyler Mental Health Center Treatment Plan, dated July 27, 2005
Social Security Administration, Retirement, Survivors and Disability Insurance, Notice of Award, dated January 6, 2006 (3 pages)
Statement from Applicant, dated May 9, 2006
Statement from Applicant, dated September 7, 2006
Letter from State of Louisiana, Department of Health and Hospitals, from S_ S_, MD, undated

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20020522 - 20020605	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20020606		Date of Discharge:  20031110

Length of Service (years, months, days):

	Active:    01  05  05
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  20

Years Contracted:  4

Education Level:  12				AFQT:  43

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.0 (2)		Behavior:  1.5 (2)		OTA:  1.83

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

Chronological Listing of Significant Service Events: 

030729:	CO’s NJP held on 030729.  No further information found in service record.  [Extracted from NAVPERS 1070/604, Awards.]

031002:	NJP for violation of UCMJ, Article 91: Insubordinate conduct.
Violation of UCMJ, Article 128: Assault.
	Award:  Forfeiture of $575.40 per month for 2 months, restriction for 60 days, reduction to E-1.  Forfeiture suspended for 6 months.  No indication of appeal in the record.

031106:	Evaluation Report and Counseling Record, Comments on Performance:  These significant character flaws were again evident by an altercation with a senior Petty Officer in which SA E_ (Applicant) physically and verbally assaulted a senior Petty Officer.  SA E_ (Applicant) was awarded 60 days of restriction, reduction in rate to SR, and is being processed for an administrative discharge.

031107:	Separation from Active Duty Screening:
	Last Physical Exam Date:  020522.
	Last Dental Exam Date:  May 2003.
	DD-2697 Completion Date:  031106.
	Last PPD Date/Results:  030924, Negative.
	Last HIV Date/Result: 031001, Pending.
	Medical history has been reviewed this date - interval changes since last physical exam?  If yes not changes.  None listed.
	Applicant found medically qualified for separation.

031110:	DD Form 214:  Applicant discharged under other than 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. 

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031110 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of under other than 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’s administrative discharge package was missing from the record.  The Board presumed regularity in the conduct of governmental affairs (E).

The Applicant is requesting a discharge upgrade to honorable.  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.  An under other than honorable conditions 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 2 nonjudicial punishment proceeding for violations of Articles 91 (Insubordinate conduct) and 128 (Assault) of the UCMJ.  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 claims he did not know he had disabling issues.  He states “The Navy did not know either and did not have me examined to rule out any medical problems.”  On 031107 the Applicant was evaluated by competent medical authority and found medically qualified for separation.  The medical evaluation refutes the Applicant’s claim.  Relief on this basis in 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 Present, 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 91 (Insubordinate conduct) 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