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NAVY | DRB | 2001_Navy | ND01-00214
Original file (ND01-00214.rtf) Auto-classification: Denied


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

ex-PRAN, USN
Docket No. ND01-00214

Applicant’s Request
The application for discharge review, received 001211, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance discharge review. The applicant listed The Military Defender as the representative on the DD Form 293.

Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 020312. After a thorough review of the testimony, 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 HONORABLE CONDITIONS (GENERAL)/ MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 A personal appearance discharge review was conducted in Washington, D.C. on XXXXXX. 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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 If appropriate add the following:
The NDRB did note an administrative error on the original DD Form 214. Block 28, Narrative Reason for Separation should read: “_____________” vice “__________”. The original DD Form 214 should be corrected or reissued as appropriate.








THE FINDING FOR MISCONDUCT IS EFFECTIVE FOR 940722 - 961002. ONLY.

SPN CODE HKQ EFFECTIVE 930628 - PRESENT . A general discharge is written “GENERAL (UNDER HONORABLE CONDITIONS)”.

 NOTE: NAVADMIN 149-96 (EFFECTIVE 6 JUN 96) DELEGATED SEPARATION AUTHORITY TO THE SPECIAL COURT-MARTIAL CONVENING AUTHORITIES (SPCMCA) OR THE GENERAL COURT-MARTIAL CONVENING AUTHORITIES (GCMCA), AS APPROPRIATE. MILPERSMAN CHAPTER 36, CHANGE 4, 03 OCT 96 IMPLEMENTED THESE CHANGES.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. Recently uncovered expert medical evidence confirms that the punishment/discharge of applicant was in error.

2. Senior Naval leadership strongly supports redress for applicant, to include a personal letter from the former CNO, who was convinced that this sailor deserved another chance.

3. Applicant has lived a productive, principled life before and after his stint of military duty; his overall record should be characterized as honorable.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from Neurologist dated October 29, 1999
Copy of Radiology/Nuclear Medicine Report dated February 22, 1999
Copy of letter from Chief of Naval Operations to applicant's parents dated May 16, 1996
Copy of letter to applicant's parents from Commander, Naval Base, Jacksonville, FL dated August 21, 1996
Copy of DD Form 214
Letter from applicant, 11 January, 2001
Character reference letters (12)
Letter from applicant’s father to CNO, 13 November 1995
Letter from Dr. Weaver, D.O., FACQC, 20 September, 1995
Letter from Adm. Delaney, 4 April 1997
Letter from Adm. Delaney, 3 October 1996
Letter from VA, 18 June 1996

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     930724 - 940626  COG

 Period of Service Under Review :
Date of Enlistment: 940627               Date of Discharge: 951116

 Length of Service (years, months, days):

         Active: 01 04 20
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 65

 Highest Rate: PRAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.00 (1)    Behavior: 2.00 (1)                OTA: 2.60

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

941229   Informal counseling: Advised of deficiency in performance (late for work). Advised of corrective actions and assistance available.

950113:  Informal counseling: Advised of deficiency in performance (late for work). Advised of corrective actions and assistance available.

950117:  Informal counseling: Advised of deficiency in performance (late for work). Advised of corrective actions and assistance available.
950322:  Applicant identified as having a behavioral/performance deficiency by being late for work. Was assigned 8 hours of Extra Military Instruction.
950325:  Report of Offense. Disobeying a lawful order from CPO. Failed weekly room inspection on 22 March. Was ordered to be standing by for personnel inspection and room inspection at 0600, 25March. When CPO came by the applicant was asleep. The room was still unsat.
950328:  Applicant identified as having a behavioral/performance deficiency by failing second room inspection on Saturday 25 March 1995. Was assigned 20 hours of Extra Military Instruction.
950404:  Report of offense. Disobeying a lawful written order.
950405:  Report of offense. Failure to obey a lawful order or regulation.
950407:  Report of offense. Work below average. New to shop. Still unsure of job and requirements. Willing to work and learn, once job is pointed out but does not look for work.
950612:  Report of offense. Individual will not or can not conform to military standards or life style. Applicant has been counseled numerous times both verbal and written. He desires not to conform to military standards. Recommend separation due to pattern of misconduct.
950610:  Psychiatry Consult: 19 year old white male reported history of "U/A's" (failure to report, personal and room inspection failures, lack of initiative to learn profession and assist shipmates at collective tasks/responsibilities and ultimately failure to response thru "EMI" and counseling resulting finally in report chit, possibly referral to captain's mast.
 Pt seen, eval by clinical interview, medical and service record review, psychological assessment by MCMJ-II. Pt cooperative.
Impression:      AXIS I: Adjustment Disorder with Mixed Emotional Features; AXIS II: Mixed Personality Disorder Traits.
Summary and Recommendation: Pt's personality issues are interfering with the flexibility, coping skills, optimism, self-responsibility and trust required for best adaptation to Navy. It is early in career, however military stress level is low. At this point I see it as 50/50 whether he will be able to adapt. He would have a better change if he could trust and model himself after a peer or one slightly senior. No follow up required. Fit to return to full duty. May follow with Family Services if he wishes. Member is presently well-stabilized and fit for full duty.
However if he continued to have difficulty adjusting to the demands of military service and if appropriate, leadership, counseling, discipline and other methods have been tried without lasting benefits, it is recommended that he be administratively separated by his local command as unsuitable for service.
950623:  NJP for violation of UCMJ, Article 86 (4 Specs): (1) On or about 1445, 6 Jun 95, without authority, absent himself from place of duty, to wit: Patrol Squadron 30 and remain so absent until on or about 1701, 6 Jun 95 (2 hours and 16 min); (2) On or about 1445, 13 Jun 95, without authority, absent himself from place of duty, to wit: Patrol Squadron 30 and remain so absent until on or about 1545, 13 Jun 95 (1 hour); (3) On or about 14 June 95, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: NAS Gymnasium, JAX; (4) On or about 16 Jun 95, without authority, failure to go at the time prescribed to his appointed place of duty, to wit: NAS Gymnasium, JAX.
 Violation of UCMJ Article 92 (6 Specs): failure to obey order or regulation (25Mar95, 4Apr95, 4Apr95, 5Jun95, 14Jun95, 16Jun95).
Award: Forfeiture of $497.00 per month for 2 months, restriction for 60 days. Appealed 950627. Denied 950713.
950623:  Applicant notified of intended recommendation for discharge and if approved, may be discharged under other than honorable conditions by reason of misconduct due to commission of a serious offense.
950623:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ, Article 27B, elected to waive all rights except to obtain copies of documents supporting the basis for the recommended separation.
950623:  Commanding Officer recommended discharge general (under honorable conditions) by reason of misconduct due to commission of a serious offense. Commanding Officer's comments (verbatim): Inability to comply with regulations have characterized Aircrew Survival Equipment man (applicant's) career. Even with counseling and numerous opportunities to improve, Aircrew Survival Equipment man Airman (applicant) has failed to meet the responsibilities of a sailor in the United States Navy. The appropriate course of action is administrative separation. Accordingly, I recommend Aircrew Survival Equipment man Airman (applicant's) characterization of service to be general (under honorable condition).
950725:  BUPERS directed the applicant's discharge with a general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.
950804:  BUPERS cancelled separation authority and advised command to re-notify applicant of administrative separation processing to include consultation with counsel (message retransmitted).
950810:  NJP for violation of UCMJ, Article 92 (2 Specs): failure to obey order or regulation; violation of UCMJ Article 112: drunk on duty.
 Award:   Extra duty for 20 days. No indication of appeal in the record.
950810:  Applicant notified of intended recommendation for discharge and if approved, may be discharged under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidence by non-judicial punishment on 21 June 1995 and 10 August 1995.
950810:  Applicant advised of his rights and having consulted with counsel certified under UCMJ, Article 27B, elected to appear before an Administrative Discharge Board.
950815:  BUPERS cancelled separation authority and advised command to renotify applicant of administrative separation processing to include consultation with counsel (Message retransmitted).
951010:  An Administrative Discharge Board was held this date. Based upon a preponderance of the evidence and by unanimous vote, the Board found that the applicant had committed misconduct due to commission of serious offense, that the misconduct warranted separation, and recommended discharge with a general (under honorable conditions).
951020:  Commanding officer recommended discharge with a general (under honorable conditions) by reason of misconduct due to the commission of a serious offense. Commanding officer's comments (verbatim): "Inability to comply with orders and regulations have characterized Aircrew Survival Equipment man Airman (applicant's) entire career. Each NJP shows a total disregard for basic core values. Even with counseling and numerous opportunities to improve, (applicant's) has failed to meet the responsibilities of a sailor in the United States Navy. The appropriate course of action is administrative separation. Accordingly, I recommend (applicant's) characterization of service to be general (under honorable conditions).

951107:  BUPERS directed the applicant's discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

 001005:  NDRB documentary record review Docket Number ND00-00482 conducted. Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 951116 general (under 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).

Issue 1. The Board could not establish as fact that the applicant’s medical condition was directly responsible for the applicant’s misconduct. The only medical evidence provided to the Board that suggests the applicant’s headaches account for his inability to report to duty on time is from October, 1999. This is four years after the applicant was processed for discharge and does not account for his medical condition at the time. A medical evaluation dated 22 August 1995 states there is no medical basis for his behavior. There is no medical evidence presented to the Board which establishes the applicant’s medical condition was responsible for his second non-judicial punishment, which constituted the commission of a serious offense. The Board found this issue is without merit. Relief denied.

Issue 2. The Board found that the preponderance of evidence does not support the contention that the applicant’s medical condition which precluded further military service, also caused the applicant’s unauthorized absences as Admiral D_ wrote in 1997. The letter from Admiral B_, dated 16 May 1996, demonstrates his willingness to help the applicant and ensure he was fairly treated, but does not demonstrate that the Admiral was convinced the applicant deserved any redress. The applicant’s discharge proceedings were proper and equitable. On 951010, an Administrative Discharge Board was held and based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to commission of serious offense, that the misconduct warranted separation, and recommended discharge with a general (under honorable conditions). Further oversight of the applicant’s case was taken by the Navy’s Bureau of Personnel, who directed the applicant’s discharge on 951107. Relief denied.

Issue 3. The applicant’s discharge characterization accurately reflects his service to his country. A characterization of service of under honorable conditions (general) 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. T he applicant’s service was marred by award of nonjudicial punishment (NJP) for offenses triable by court-martial on two occasions and adverse counseling entries on numerous other occasions. The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for an honorable characterization of service. An upgrade to honorable would be inappropriate. It must be noted that most sailors serve honorably and well and therefore earn honorable discharges. In fairness to those sailors, commanders and separation authorities are tasked to ensure that undeserving sailors receive no higher characterization than is due. Relief denied.

 Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the applicant’s enlistment. Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to his discharge. Relief denied.



Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective
22 Jul 94 until 02 Oct 96, 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 112, for being drunk on duty, 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 view DoD Directive 1332.28 and other Decisional Documents by going online at " afls10.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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