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NAVY | DRB | 1999_Navy | ND99-01182
Original file (ND99-01182.rtf) Auto-classification: Denied


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

ex-AA, USN
Docket No. ND99-01182

Applicant’s Request
The application for discharge review, received 990903, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant listed the Disabled American Veterans as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000512. 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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. I have no prior conviction.

2. I have been a good citizen since I have been discharged.

3. My evaluations show that I was a squared away sailor.

4. I have helped my community with assisting them with auto parts.

5. I have a letter of recommendation from my church.

6. I was a member of the Knights of Columbus in 1992.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Disabled American Veterans' comments dated November 10, 1999
Copy of DD Form 214
Applicant's statement
Letter of recommendation from two teachers from Queen of Peace School
Copy of police record check dated April 22, 1992
Certificate from Knights of Columbus dated March 22, 1992
Membership card for Knights of Columbus
Copy of Enlisted Performance Evaluation Report for 89Nov14 to 90Jan31
Copy of page of medical record dated November 18, 1990
Page one of enlistment contract
Copy of authorization form dated March 12, 1999

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     890719 - 890724  COG

 Period of Service Under Review :
Date of Enlistment: 890725               Date of Discharge: 910125

 Length of Service (years, months, days):

         Active: 01 06 01
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 32

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.30 (2)    Behavior: 3.20 (2)                OTA : 3.07

 Military Decorations: None

 Unit/Campaign/Service Awards: BER

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

900814:  Drug and Alcohol Evaluation: Does not appear to be dependent on drugs or alcohol at this time. Recommendations: Separation from naval service. Referral to Fleet Mental Health for psychological evaluation. Command monitored urinalysis surveillance, minimum two times weekly.

900815:  Drug and Alcohol Screening: Alcohol or drug abuser. Not drug or alcohol dependent.

901206:  Psychiatric evaluation: Impression: Axis I: Malingering, Axis II: Immature personality disorder, Axis III: post overdose.

901211:  NJP for violation of UCMJ, Article 115: Intentionally injure himself by overdose of prescription medication to avoid his duties as aircraft mechanic on 5Dec90.
         Award: Forfeiture of $200 per month for 1 months, restriction for 60 days, reduction to AA. No indication of appeal in the record.
910102:  Fleet Mental Health Branch Clinic: Follow up. Continues to blame other in his command for problems, ruminative. Pt has attended group follow up regularly, but feels he is only getting a little help there. Wants someone to advocate for him and justify his actions. Overly suspicious, wanted to review everything in file. Was able to acknowledge personal problems and incorporate examiner's comments and feedback in a meaningful way. No SI ro HI. Risk continues to be low moderate. No change in MSE, DX or recommendations. No individual follow up indicated. Pt will continue in stress management group.
910104:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
910104:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to make a statement and the right to obtain copies of the documents used to support the basis for the separation.
910114:  Medical officer found applicant not dependent on drug or alcohol.

 910115:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. CO’s comments: AA Villagomez missed the first deployment due to injury of right foot. He was rescheduled but because of delay was not able to deploy. When he was rescheduled the third time, he overdosed on prescription medicine in order to avoid deployment. He was given opportunity to rejoin detachment but refused to do so. Recommend AA Villagomez be discharged from the Naval service under other than honorable conditions.

910122:  CNMPC 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 910125 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 the applicant’s issue 1, the applicant contends that he had “no prior convictions.” The Board found that on other convictions were necessary for the applicant to be administratively separated for misconduct – commission of a serious offense. The applicant was properly separated based on his conviction at NJP on 901211 for malingering. No relief will be granted based on this issue.

In the applicant’s issues 2, 4, 5 and 6, the fact that the applicant has been a “good citizen” since his discharge does not change the fact that the applicant was convicted at CO’s mast of malingering. The applicant is reminded that 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 ample documentation of good character and conduct. Therefore no relief will be granted. The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

The Board disagrees with the applicant’s statement in issue 3 that his evaluations show that he “was a squared away sailor.” The applicant had an overall trait average (OTA) of 3.07 which is below average.

Pertinent Regulation/Law (at time of discharge)
A. Naval Military Personnel Manual, (NAVPERS 15560A), Change 8, effective
21 Aug 89 until 14 Aug 91, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.
B. Under 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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