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NAVY | DRB | 1999_Navy | ND99-00430
Original file (ND99-00430.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND99-00430

Applicant’s Request
The application for discharge review, received 990208, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a documentary record discharge review. The applicant listed AMERICAN LEGION as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 991213. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of Misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.       I respectively request an upgrade of my DD214 from Under Other Than Honorable Conditions to General - Under Honorable Conditions.
2.       I was sexually assaulted in the Navy. This is clearly documented in my Service Record. To add to this trauma my daughter was also assaulted at a later time while I was on active duty. (Should be of record in my service files).
3.       Due to various, violent assaults I suffer from medical and mental problems. My mental conditions let to my misconduct in the Navy. I just wanted out, I was scared.
4.       I am now service connected by the Department of Veterans Affairs for PTSD as a result of my sexual assault. I am still receiving treatment for this.
5.       I believe had this to happened I would have had a very honorable Navy career. Based on the evidence please grant an upgrade.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Copies of Department of Veteran Affairs Entitlement information (5pgs)
Letter from State of Nebraska Department of Veterans Affairs

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     880527 - 890521  COG

 Period of Service Under Review :
Date of Enlistment: 890522               Date of Discharge: 920827

 Length of Service (years, months, days):

         Active: 03 03 06
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 51

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.06 (3)    Behavior: 3.04 (5)                OTA: 3.26

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

891003:  NJP for violation of UCMJ, Article 86: Absent from her appointed place of duty from 0630-0900, 890928.
         Award: Restriction and extra duty for 14 days. No indication of appeal in the record.
891016:  Retention Warning from [Naval School of Dental Assisting and Technology, San Diego, CA]: Advised of deficiency (Multiple violations of the UCMJ.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

891017:  Dropped from DT “A” school for numerous infractions.

891018:  NJP for violation of UCMJ, Article 92: Failed to obey a lawful order, to wit: NSDAT Extra Military Instruction, violation of UCMJ Article 134: Break restriction on or about 2150, 891009.
Award: Forfeiture of $163.00 per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.
920123:  Retention Warning from [Naval Air Station, Pensacola, FL]: Advised of deficiency (Upon reporting, it was noticed that you were awarded OIC's NJP twice: 891003, for violation of the UCMJ, Article 86, Unauthorized Absence and on 891013 for violation of the UCMJ, Article 92, Failure to obey an order and Article 134, Breaking Restriction. Such conduct is prejudicial to good order and will not be tolerated), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920610:  NJP for violation of UCMJ, Article 86: Absent from place of duty 0700-0723, 920521.
         Award: Forfeiture of $440.00 per month for 2 months(suspended for 2 months),extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
920629:  [Naval Air Station, Pensacola, FL] notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by a NJP on 891013 for violation of UCMJ, Article 92, failure to obey a lawful order; misconduct due to a pattern of misconduct as evidenced by NJP on 891003, 891013, page 13 counseling/warnings on 891016, 920123 and a NJP on 920610.
920629:          Applicant advised of her rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation. Applicant did not object to her separation.
920709:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a commission of a serious offense as evidenced by a NJP on 891013 for violation of UCMJ, Article 92, failure to obey a lawful order; misconduct due to a pattern of misconduct as evidenced by NJP on 891003, 891013, page 13 counseling/warning on 891016, 920123 and a NJP on 920610. SA Bjelland has numerous personal problems. She also has a small child. Her lack of priorities has caused Florida State Health and Rehab Services to intervene in her personal life. She has become overwhelmed by her problems and has become unable to meet the demands of the Navy. She has received counseling and assistance from various sources to no avail. She is uncooperative with military authority. SA B____ is an administrative burden to the Navy and should be expeditiously discharged.

920811:  BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 920827 under other than honorable conditions for misconduct due to a pattern of misconduct (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

In the applicant’s issues 1 through 5, although there may be mitigating circumstances, the Board found that two of the three NJPs occurred before the applicant’s sexual assault. In addition, the applicant was dual processed for administrative separation for pattern of misconduct and commission of a serious offense. Her violation of the UCMJ that lead to her serious offense also occurred before her sexual assault. The Board does not find that this as reason to upgrade the applicant’s discharge. No relief is granted on the basis of these issues.

The applicant is reminded that she is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge. There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service. However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D). Those factors include, but are not limited to, the following: evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided any documentation of good character and conduct. Therefore no relief will be granted. The applicant is encouraged to continue with her pursuits.

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C, effective 15 Aug 91 until
04 Mar 93), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A PATTERN OF MISCONDUCT.

B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article [e.g., 86, for unauthorized absence for a period in excess of 30 days] if adjudged at a Special or General Court-Martial.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809

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:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  Washington Navy Yard
                  720 Kennon St SE Rm 309
                  Washington, D.C. 20374-5023     


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