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NAVY | DRB | 2001_Navy | ND01-00777
Original file (ND01-00777.rtf) Auto-classification: Denied


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

ex-AKAN, USN
Docket No. ND01-00777

Applicant’s Request
The application for discharge review, received 010517, requested that the characterization of service on the discharge be changed to general/under honorable conditions and the reason for the discharge to be changed. The applicant requested a personal appearance hearing discharge review before a traveling panel closest to Louisville, KY. The applicant listed Veterans of Foreign Wars as the representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearing are held in the Washington, DC Area. The Naval Discharge Review Board (NDRB) also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011214. 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/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application. His records were reviewed on August 22, 2001 and the following comments are hereby submitted. The applicant was suffering from undiagnosed depression and had no control or understanding of his conditions.

Were refer this case to the Board for their careful and compassionate consideration and request the applicant's discharge be reviewed for Clemency due to post service.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Letter from Applicant
Reference Letter from R___ S____
Letter in Response from DAV Service Officer S____ C. C___
Copy of Discharge Document from BUPERS
Partial Copy of Commanding Officer Recommendation
Partial Copy of Enlisted Performance Evaluation Report
VFW Cover Letter

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     None

 Period of Service Under Review :
Date of Enlistment: 910510               Date of Discharge: 930810

 Length of Service (years, months, days):

         Active: 02 02 24
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 11                        AFQT: 51

 Highest Rate: AKAN

 Final Enlisted Performance Evaluation Averages (number of marks):

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

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM, SSDR, NAVY"E"RIBBON

Days of Unauthorized Absence: 7

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

910513:  Retention Warning, despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your preservice civil/drug abuse: Reckless driving, driving without insurance and driver's license, and 2 counts of no registration, 2/90, Louisville KY. 11 days in jail and $500.00 fine.

910919:  NJP for violation of UCMJ, Article 128: Assault consummated by a battery on 910905.
         Award: Forfeiture of $200.00 per month for 2 months, restriction and extra duty for 21 days. No indication of appeal in the record.

921209:  To UA.

921215:  From UA (6days/S)

930429:  NJP for violation of UCMJ, Article 86: Absent from appointed place of duty on 930328, violation of UCMJ Article 112: Found drunk on duty 930328.
         Award: Restriction and extra duty for 15 days (suspended for 6 months), reduction to E-2 (suspended for 6 months). No indication of appeal in the record.

930429:  Retention Warning: Advised of deficiency (Pattern of misconduct evidenced by violation of the UCMJ, Article 86: Absent from appointed place of duty on 930328, violation of UCMJ Article 112: Found drunk on duty 930328, notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
930628:  Discharge Diagnoses: Axis I: Alcohol abuse, Axis II: Personality Disorder with antisocial and borderline features, Axis III: none, Axis IV: mild, Axis V: 60/75. Psychiatrist indicated applicant is not considered mentally ill and return. This individual does manifest a longstanding disorder of character and behavior which is of such severity as to interfere with his serving adequately in the Navy. Although not imminently suicidal or homicidal, he is a continuing risk to do harm to himself or others. …There are no psychiatric contradictions to any administrative, disciplinary or legal actions deemed necessary by the parent command.

930703:  Applicant notified of intended recommendation for administrative separation due to convenience of the government on the basis of personality disorder and misconduct due to the commission of a serious as evidenced by your nonjudicial punishment on 910919, for violation of the UCMJ, Article 128, assault consummated by a battery and your nonjudicial punishment on 930429, for violation of the UCMJ, Article 112, drunk on duty.
930709:          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 submit statements on own behalf either verbally or in writing and obtain copies of the documents used to support the basis for the separation.
930720:  Commanding officer recommended administrative separation due to convenience of the government on the basis of personality disorder and misconduct due to the commission of a serious offense.

930720:  To UA.

930721:  From UA (1day/R).

930730:  BUPERS 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 930810 under other than 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).

 The applicant’s first issue states: “The applicant was suffering from undiagnosed depression and had no control or understanding of his conditions.” After careful review of the applicant’s service and medical records the Board found that the applicant was dual processed for a diagnosed personality disorder and commission of a serious offense. On 930628, the attending physician stated: “ There are no psychiatric contradictions to any administrative, disciplinary or legal actions deemed necessary by the parent command.”
The Board found the other than honorable discharge was appropriately assigned for the applicant’s commission of a serious offense. The NDRB found, at the time of discharge, the applicant’s command considered the applicant’s medical condition and did not find it significant enough to extenuate or mitigate his misconduct. Relief is not warranted.

The applicant’s second issue states: “Were refer this case to the Board for their careful and compassionate consideration and request the applicant's discharge be reviewed for Clemency due to post service.” 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, medical condition, and clean police record. Relief is not warranted.

The applicant requested the reason for discharge be changed. 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 misconduct-commission of a serious offense 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.

The applicant is 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 5, effective
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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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