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NAVY | DRB | 2001_Navy | ND01-00067
Original file (ND01-00067.rtf) Auto-classification: Denied


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

ex-AEAR, USN
Docket No. ND01-00067

Applicant’s Request
The application for discharge review, received 001017, 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 Puerto Rico Public Advocate for Veterans Affairs as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010510. 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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. Since I've the surgery of my testicule I don't received the proper medical orientation. I was very concern about myself. I guess I took a wrong decision; I'm going home to my family for help.

2. Since my condition stared in the military service and before I took the action for going able, I don't have VA medical treatment. I feel should be aforded distiment so I asked to change my discharge to general discharge under Honorable condition to get VA medical treatment.

3. I sincerely state that I wasn't fully awarded of the consecuenses of my action.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Eighteen pages from applicant's service record
Copy of police record check dated May 15, 2000

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     960315 - 960729  COG

 Period of Service Under Review :
Date of Enlistment: 960730               Date of Discharge: 980529

 Length of Service (years, months, days):

         Active: 01 10 00
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 52

 Highest Rate: AEAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*        Behavior: NMF*            OTA: NMF*

 Military Decorations: None

 Unit/Campaign/Service Awards: AFEM, SSDR

 Days of Unauthorized Absence: 28

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

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

 Chronological Listing of Significant Service Events :

970829:  NJP for violation of UCMJ, Article 86: Absence without leave, violation of UCMJ, Article 92: Failure to obey order or regulation.
         Award: Forfeiture of $519.15 per month for 2 months, restriction for 45 days, reduction to AEAR. Forfeiture and reduction suspended for 6 months. No indication of appeal in the record.
970911:  Retention Warning: Advised of deficiency, notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

980424:  NJP for violation of UCMJ, Article 86 (3 specs): (1) Unauthorized absence from 1800, 10Mar98 to 0900, 6Apr98 (27 days/surrendered), (2) Unauthorized absence from 1800, 6Apr98 to 1030, 8Apr98 (1 day/ surrendered), (3) Unauthorized absence from 0700-0750, 9Apr98, violation of UCMJ, Article 92: Failure to obey order or regulation on 6Apr98, to wit: to report to Base Galley.
         Award: Forfeiture of $460 per month for 2 months, extra duty for 30 days, reduction to AEAR. No indication of appeal in the record.
980429:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
980429:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights .

980505:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

980526:  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 980529 under other than honorable conditions for misconduct due to a pattern of misconduct (A). The Board presumed regularity in the conduct of governmental affairs (B). 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 served 1 year and 10 months in the service, with the majority of time spent in schooling. At the applicant’s first command, he was found guilty of UA and failing to obey an order at CO’s NJP on 970829. He received a retention warning for these offenses. The applicant then was brought back to CO’s NJP for UA (27 days, 1 day and 50 minutes) and failure to obey an order, thereby violating his retention warning. In response to the applicant’s issues 1 and 2, the Board has no obligation to change the applicant’s discharge in order to allow him to get medical treatment from the VA. No relief will be granted based on this issue.

The applicant states in issue 3 that he “ wasn't fully awarded of the consecuenses of my action.” The applicant was given his rights and waived these rights on 980429. The applicant must accept the consequences of his actions. His service is accurately characterized as having been served under other than honorable conditions. Relief is denied.

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 reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 1997 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

B. 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.

C. 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.

D. 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 view DoD Directive 1332.28 and other Decisional Documents by going online at “ afls14.jag.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:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023      


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