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NAVY | DRB | 2001_Navy | ND01-00634
Original file (ND01-00634.rtf) Auto-classification: Denied


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

ex-STGSR, USN
Docket No. ND01-00634

Applicant’s Request
The application for discharge review, received 010406, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011031. 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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. My discharge was issued soley on my Psychological Evaluation. During Captain's NJP discharge was not even mentioned until my Psychological evaluation was entered into the hearing. I was punished while still in service for my unauthorized absence & feel my discharge should have been based on my psychological evaluations. I feel I have been punished twice for the same mistake.

2. My ability to serve was impaired because of marital, family & child care problems. My wife was very young and had never been away from family. It was very hard on her being away from home and having a new born baby. I was in constant fear that my wife and child would leave me. This impaired my judgement and later sent me to Mental Health.

3. My ability to serve was impaired also by financial problems. My family qualified for WIC which helped with some of the babies needs, but we did not qualify for food stamps. I mad $490 every 2 weeks. We lived in a one bedroom apartment for #535 a month plus bills. I also paid $240 for a car payment. I could not afford anything but bare essentials. The Navy never offered any help.

4. My Psychological evaluation shows why my ability to serve was impaired. I have included my evaluation as a supporting document.

5. 2 other documents that I am including both state reason for seperation as being misconduct-commission of a serious offense & convenience of the government-personality disorder. If this was the reason for separation why was misconduct the only reason listed on my DD 214 which I have submitted as well. Could this be considered going against discharge regulations

6. I feel I should have recieved an Honorable discharge and not have been punished for feeling that my family was more important. I spent two days in the Brig at Mirimar, 45 days restriction 45 days extra duty, and half a months pay witheld. This should have been enough for my unauthorized absences. I could have lost my wife and family in the service, but instead I have been married for five years and have two children. I feel my dicharge should have been an option to maintain my family and not away to further punish me for my family values.




 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Eight pages from applicant's service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     960412 - 960908  COG

 Period of Service Under Review :
Date of Enlistment: 960909               Date of Discharge: 980313

 Length of Service (years, months, days):

         Active: 01 06 05
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

 Education Level: 12                        AFQT: 75

 Highest Rate: STGSA

 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: 38

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

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

 Chronological Listing of Significant Service Events :
980127:  Psychological Evaluation:        Axis I: 1. Adjustment disorder with depressed mood, severe. 2. Marital Problems, Axis II: Personality disorder NOS, with inadequate and dependent features. The psychologist recommended separation based on a personality disorder of such severity as to render the applicant incapable of serving adequately in the naval service. Applicant was considered self-destructive and a continuing risk of harm to self or others.

980128:  NJP for violation of UCMJ, Article 86 (4 specs): (1) Absent from appointed place of duty 1Jan98 to 0700, 2Jan98, (2) Absent from appointed place of duty on 28Dec97 to 0700, 29Dec97, (3) Unauthorized absence from 0730, 10Nov97 to 0825, 15Dec97 (35 days/surrendered), (4) Absent from appointed place of duty 17Jan98 to 0730, 20Jan98 (3 days), violation of UCMJ Article 92: Derelict in the performance of duties in that he negligently failed to stand his watch on 2Jan98 and 29Dec97.
         Award: Forfeiture of $463 per month for 2 months, restriction and extra duty for 45 days, reduction to STGSR. Reduction suspended for 6 months. No indication of appeal in the record.
980304:  Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense and convenience of the government - personality disorder as evidenced by your commanding officer's nonjudicial punishment on 28 January 1998 and your mental health evaluation of 27 January 1998.
980304:  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 obtain copies of the documents used to support the basis for the separation.
980305:  Commanding Officer, Fleet Anti-Submarine Warfare Training Center directed the applicant's discharge general (under 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 980313 general (under honorable conditions) for misconduct due to commission of a serious offense (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).

Issues 1 and 5. The Board does not agree that the applicant was discharged solely as a
result of his psychological evaluation. The record clearly indicates his chain of command
initiated separation proceedings based upon the commission of a serious offense as
evidenced by commanding officer's nonjudicial punishment on 28 January 1998 and also
for your mental health evaluation on 27 January 1998. The separation authority directed
the applicant’s discharge as general (under honorable conditions) by reason of
misconduct due to the commission of a serious offense. These actions were both proper
and equitable.

The applicant states he felt he has been punished twice for the same offense. The applicant was notified of the intended recommendation for a general (under honorable conditions) discharge on 980304, was 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 obtain copies of the documents used to support the basis for the
separation. Relief will not be granted on the basis of these issues.

Issues 2, 3, 4 and 6. The Board found that the applicant’s age, education level, and test scores qualified him for enlistment. While he may feel that his personal and family problems were factors that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. 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. He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Legal representation at a personal appearance hearing is highly recommended but not required. Relief denied.


Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 97 until 29 March 2000, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE .
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 " 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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