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NAVY | DRB | 1999_Navy | ND99-01041
Original file (ND99-01041.rtf) Auto-classification: Denied


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

ex-FR, USN
Docket No. ND99-01041

Applicant’s Request
The application for discharge review, received 990728, 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 designated the Disabled American Veterans as her representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000417. 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, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 Submitted by DAV:

 After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we find the FSM is seeking an upgrade in her discharge to General.

The FSM contends that being separated from her family caused a severe amount of stress on her. This caused depression and loneliness. When the Navy was approached about helping the husband find a position closer to the FSM, the Navy said, "No problem". However, this did not happen and caused more stress on the FSM.

The FSM was undergoing mitigating circumstances that caused her to attempt suicide. The FSM was severely depressed and lonely. Therefore, we continue to support the contentions of the FSM as set forth on her completed DD Form 293, wherein the FSM is seeking an upgrade in her discharge.

We ask for the boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any previously submitted by the Applicant.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Applicant's ltr to the Board undated
Letter to Mr. K_ A. K_, undated concerning Federal regulation pertaining to incarcerated veterans receiving compensation
Applicant's Mother-in-law's undated letter to the Board
Copy of 10 U.S.C. 5313, 'Limitation on payment of compensation and dependency and indemnity compensation to persons incarcerated for conviction of a felony'

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     971224 - 980105  COG

 Period of Service Under Review :
Date of Enlistment: 980106               Date of Discharge: 980710

 Length of Service (years, months, days):

         Active: 00 06 05
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

Education Level: 12                        AFQT: 47

 Highest Rate: FA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                  Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

980615:  NJP for violation of UCMJ, Article 115: malingering on 4JUN98.
         Award: Extra duty for 20 days, reduction to E-1. No indication of appeal in the record.
980616:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
980616:  Applicant advised of her rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
980624:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. Commanding officer’s comments (verbatim): "Since reporting to this command, Fireman Recruit (Applicant) devoted nearly all of her energies to being separated from the navy because it interfered with her family's plans. After unsuccessfully exhausting nearly all channels for separation, including the command Career Counselor, Legal Officer and Chaplain, the member made it clear to her chain of command that her separation efforts would continue, and may include self-injury. The following morning, she staged a suicide attempt. When medical personnel on board examined Fireman Recruit (Applicant) after the attempt, it was obvious this was a staged, rather than a legitimate, suicide attempt. At Commanding Officer's Nonjudicial Punishment, I therefore found her guilty of malingering for staging this suicide gesture in a further attempt to be separated from the military. In view of the foregoing, I recommend Fireman Recruit (Applicant) be separated from the naval service with an Other Than Honorable discharge as expeditiously as possible."

980701:  COMSUBGRU TWO directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

 PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 980710 under other than honorable conditions for misconduct due to commission of a serious offense (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 response to the applicant’s issues, the Board found nothing in the records nor did the applicant submit any supporting documentation that showed that her personal problems were of sufficient magnitude that they could not be resolved through standard military channels or by the applicant’s chain of command. In fact, the Board found that the applicant’s age, education, test scores, prior service, promotions and awards were sufficient to qualify her for enlistment. The Board will not grant relief on the basis of this issue.

 Pertinent Regulation/Law (at time of discharge)
 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 97 until Present, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE .

B. In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article [e.g., 115, malingering] 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 Street SE Rm 309
                  Washington, D.C. 20374-5023     



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