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NAVY | DRB | 2001_Navy | ND01-00872
Original file (ND01-00872.rtf) Auto-classification: Denied


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


ex-DR, USN
Docket No. ND01-00872

Applicant’s Request
The application for discharge review, received 010620, 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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020110. 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/Misconduct - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues

1. I feel that I was eventually discharged after I contracted Tuberculosis, At the time I was adjusting to Military life at an early life and time of development for myself.
 At first, I was missed diagnosed as having pneumonia on Feb 23, 1987, which eventually was Active Pulmonary Tuberculosis. I was acting harsh because of the treatment and various assaults on my character. I felt as though something was wrong with me but no one would listen. I feel I should be giving a chance to prove I did not deserved such a discharge, I would have given my life in any type of encounter the U.S. would have been evolved in. I was a growing Naval Apprentice who wasn't given a chance.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Character reference dated July 10, 2001
Certificate for nurse assistant dated December 18, 1992
 Copy of DD Form 214
 Copy of Memphis City Schools transcript of General Educational Development Tests completed May 25, 1995

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USNR (DEP)     850227 - 850505  COG

 Period of Service Under Review :
Date of Enlistment: 850506                        Date of Discharge: 870612

 Length of Service (years, months, days):
         Active: 02 01 07
          Inactive: None
Age at Entry: 17 Parental Consent                Years Contracted: 4

 Education Level: 11 GED                    AFQT: 49
Highest Rate: DN

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 2.17 (3)    Behavior: 2.17 (3)                OTA: 2.53

 Military Decorations: None
Unit/Campaign/Service Awards: None
Days of Unauthorized Absence: 8

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

861002:  NJP for violation of UCMJ, Article 86: Absent from place of duty, violation of UCMJ, Article 107: Make a false official statement.
         Award: Forfeiture of $150 per month for 1 month, restriction and extra duty for 30 days. No indication of appeal in the record.
861002:  Retention Warning from Naval Air Station, Meridian, MS: Advised of deficiency (Misconduct as evidenced by your NJP of 2 October 1986.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

861030:  NJP for violation of UCMJ, Article 91 (2 specs): (1) Disobeying a lawful order from superior petty officer, (2) Disrespectful in language to a superior petty officer, violation of UCMJ, Article 117: Wrongful use of provoking words, violation of UCMJ, Article 128 (2 specs): Assault on a superior officer.
         Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 30 days. No indication of appeal in the record.
861103:  Applicant to unauthorized absence, 0537, 3Nov86.

 861111:  Applicant from unauthorized absence 1000, 11Nov86 (8 days/apprehended).
861205:  Summary Court-Martial.
          Charge I: violation of the UCMJ, Article 134 (2 specs):
          Specification 1: Breaking restriction.
          Specification 2: Breaking restriction.
          Charge II: violation of the UCMJ, Article 86:
         Specification: Absent from place of duty.
          Finding: to Charge I and II and the specifications thereunder, guilty.
          Sentence: Forfeiture of $150.00, confinement for 15 days, reduced to DA.
          CA action 861205: Sentence approved and ordered executed.
870326:  NJP for violation of UCMJ, Article 117: Wrongful use of provoking words, violation of UCMJ, Article 128: Assault.
         Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 30 days, reduction to DR. No indication of appeal in the record.
870409:  Naval Dental Clinic, Pensacola, FL notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.
870409:  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.
870423:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense. Commanding officer’s comments (verbatim): Dentalman Recruit (applicant) continues a pattern of misconduct which began in October of 1986. He has acquired three nonjudicial punishments and one summary court-martial to date and all indicators point to continued misconduct in the areas of assault and disrespect toward senior personnel and peers alike. He is unreliable, lacking self discipline and organization. Dentalman Recruit (applicant) does not possess the maturity required to deal with adverse situations which may account for his propensity to fight with fellow naval personnel. It remains unlikely he will develop this maturity, rendering Dentalman Recruit (applicant) undesirable for further naval service. I recommend discharge from the naval service with characterization as other than honorable.
870606:  CNMPC 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 870612 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).
Issue 1. The Board found no relation between the applicant’s misconduct and his medical condition. The Board also disagrees with the applicant’s assertion that he was not given a chance. The applicant waived his right to contest the characterization of service at an administrative hearing while being processed for discharge in 1997. Under other than honorable conditions 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 three occasions and a Summary Court Martial on another occasion. 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 would be inappropriate.

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 15560, Change 7/86, effective 15 Dec 86 until 14 Jun 87), Article 3630600, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT A 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 “ 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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