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NAVY | DRB | 2001_Navy | ND01-00262
Original file (ND01-00262.rtf) Auto-classification: Denied


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

ex-FCSN, USN
Docket No. ND01-00262

Applicant’s Request
The application for discharge review, received 010108, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to medical, Honorable -- JFL. The applicant requested a personal appearance hearing before the board in the Washington National Capital Region. The applicant listed a private representative on the DD Form 293. In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 011127. 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 and reason for the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. My discharge was inequitable because it was based on one isolated incident in 34 months of service with no other adverse action. It did not consider the physical, mental, and emotional illness beyond my control that led to the incident.

2. My discharge was improper because the document, DD FORM 214, NOV 88 (Exhibit A), failed to list the appropriate information in Blocks 11, 13, 14, 15, 16, 17, 20, 24, 25, 26, 27, and 29. I was provided no dental treatment upon release, or just prior thereto.

3. Pay. My discharge was inequitable because it failed to award earnings of approximately $3,777 installment as part of $8,000 enlistment bonus due me at the 24 months service point. Neither did it make provisions to return $1,200 -- 100 per month -- basic pay reduction occurring throughout 1997 when I was a participant in the MGIB (Montgomery GI Bill) Program. I received no veterans education or medical benefits when discharged and was not paid for 28.5 days accrued leave. My discharge also failed to award the appropriate Disability Severance pay. It provided no option for post-service SGLI coverage.

4. My discharge was improper because detailed counsel failed to provide adequate representation coupled with oversight on key issues by the U.S. Government.

5. My discharge was improper because subsequent to proper medical treatment it did not consider the alternative of my return to active duty or to complete my enlistment serving ashore, vice at sea, preferably in an assignment similar to that I served in the JAG's office prior to the discharge. There was no consideration for a 2-year minority enlistment.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Brief in support of issues
Copy of DD Form 149
Letter to Board of Correction of Naval Records dated August 21, 2000
Copy of DD Form 214
Thirty-six pages from applicant's service record
Character reference dated August 11, 2000
Character reference dated August 6, 2000
Copy of narrative summary for 5May-7May99
Letter from applicant to Defense Finance and Accounting Service dated August 10, 2000
Letter from applicant to Defense Finance and Accounting Service dated August 9, 2000
Letter from Defense Finance and Accounting Service dated July 28, 2000
Letter from applicant to Defense Finance and Accounting Service dated April 24, 2000
Letter from Defense Finance and Accounting Service dated April 29, 2000
Letter to Defense Finance and Accounting Service from applicant dated April 2, 2000
Letter from Defense Finance and Accounting Service dated March 27, 2000 with enclosures
Copy of itinerary
Copy of travel certificate, separation without orders dated October 18, 1999
Copy of report - final separation
Copy of enlisted strength loss
Letter to Board of Correction of Naval Records dated September 12, 2000 (2 copies)
Letter to applicant from Defense Finance and Accounting Service dated August 24, 2000 (2 copies)
Letter to applicant from Defense Finance and Accounting Service dated July 6, 2000 (2 copies)
Letter to applicant from Defense Finance and Accounting Service dated August 25, 2000 (2 copies)
Copy of collection action dated February 2, 2000 (2 copies)
Letter to applicant from supervisor, DITY claims branch dated February 2, 2000
Letter to Defense Finance and Accounting Service re: efforts to collect excess cost dated April 2, 2000
Letter from applicant dated August 16, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     960614 - 961203  COG

 Period of Service Under Review :
Date of Enlistment: 961204               Date of Discharge: 991020

 Length of Service (years, months, days):

         Active: 02 10 17
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

 Education Level: 12                        AFQT: 73

 Highest Rate: FCSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NF           Behavior: NF              OTA: NF

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 183

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

 Chronological Listing of Significant Service Events :

990629   Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Unauthorized absence (UA) from 0001, 1Nov98 to 1300, 4May99 (183 days/surrendered).
Separation package missing from service record.
PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 991020 under other than honorable conditions in lieu of a trial by court-martial (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).

 The applicant’s first issue states: “My discharge was inequitable because it was based on one isolated incident in 34 months of service with no other adverse action. It did not consider the physical, mental, and emotional illness beyond my control that led to the incident.” The applicant avoided a trial by court martial by requesting discharge with an Other Than Honorable characterization in lieu of court martial. The applicant was on Unauthorized Absence from 981101 to 990503 (in excess of 180 days). An Unauthorized Absence for a time greater than 30 days is a serious military offense. The Board rejects the applicant’s issue that his documented misconduct was simply an “isolated incident.” There is nothing in the record that demonstrates that the applicant’s Command did not consider the applicant’s mental state at the time of discharge. The Board found no impropriety or inequity in the discharge. Relief is denied.

The applicant’s second issue stating that errors on his DD Form 214 make the discharge improper, is without merit. The NDRB is chartered to review the discharge of former members for propriety and equity. To permit relief based on an impropriety or inequity, there must be a procedural error in the execution of the discharge or the characterization assigned must be excessively harsh. Errors on a DD 214 can and should be corrected administratively but do not invalidate a former member’s discharge and are not sufficient grounds for granting relief. The applicant’s issue regarding dental benefits is beyond the scope of this Board. Relief is denied.

The applicant’s third issue argues that the discharge was inequitable based on pay and allowances. The NDRB found this issue non decisional. The NDRB does not make decisions regarding pay and allowances. The applicant should contact the Defene Finance and Accounting Service, Cleveland, OH regarding pay and allowance issues. Relief is denied.

The applicant’s fourth issue states: “My discharge was improper because detailed counsel failed to provide adequate representation coupled with oversight on key issues by the U.S. Government.” The Board found no evidence in the record suggesting the applicant was not afforded due process in the discharge proceedings. The NDRB presumes regularity in the conduct of government affairs. The applicant failed to provide documentation supporting his issue. Relief is denied.

The applicant’s fifth issue states: “My discharge was improper because subsequent to proper medical treatment it did not consider the alternative of my return to active duty or to complete my enlistment serving ashore, vice at sea, preferably in an assignment similar to that I served in the JAG's office prior to the discharge. There was no consideration for a 2-year minority enlistment.” The NDRB found no impropriety in the applicant’s discharge. There is no record that the applicant was not afforded due process in the discharge. The applicant accepted a separation from the Naval Service with an Other Than Honorable discharge characterization in order to avoid a trial by court martial. After commission of a serious military offense, such as being UA over 180 days, there was no requirement by the service to retain or reward the applicant with an “early out” or transfer to a shore assignment. The board found no impropriety or inequity in the discharge. Relief is denied.
The NDRB, under its responsibility to examine the propriety and equity of an applicant's discharge, will change the reason for discharge if such a change is warranted. The summary of service clearly documents that separation in lieu of trial by court martial was the reason the applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the applicant was discharged. To change the Narrative Reason Separation would be inappropriate. Relief is not warranted.

The NDRB is authorized to consider post-service factors in the re characterization of a discharge. 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 the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, 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, may be considered by the NDRB. The applicant failed to provide documentary evidence to demonstrate his positive community service, employment history, and clean police record. Relief is not warranted.

The applicant remains eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is recommended .

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 1997 until 10 July 2000, Article 1910-106 (formerly 3630650), SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B. A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article 86, unauthorized absence for a period more than 30 days, upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-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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