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NAVY | DRB | 2001_Navy | ND01-01069
Original file (ND01-01069.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND01-01069

Applicant’s Request
The application for discharge review, received 010813, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to personality disorder. The applicant requested a documentary record discharge review. The applicant listed a civilian counsel as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020307. 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 characterization and reason for discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. Dear DRB: I am requesting that my discharge be upgraded to Honorable. If you disagree, please explain in detail why you disagree. The presumption of regularity that might normally permit you to assume that the service acted correctly in characterizing my service as less than honorable does not apply to my case because of the evidence I am submitting. I have always had social and emotional problems, including learning disabilities, as evidence by my school reports, the number of NJP hearings and the medical/psychologist's reports. I feel that the above mentioned problems impaired my ability to serve. I was in great need of psychological help. During the time I served, the U.S. Navy was very harsh on sailors that exhibited social and emotional problems; those such were labeled as "problem sailors" and the goal was to discharge those sailors with an undesirable discharge as quickly as possible. I still have these problems and am currently addressing them in therapy. I am now able to deal with my issues and my behavior has improved as a result of the assistance that I have received from therapy. I am really trying to better myself and would greatly appreciate some relief with an Honorable discharge. I am asking you to take a close look at the evidence I am submitting, the statement I am making, and consider those when making your decision. Thank you. Very Respectfully,
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Copy of neuropsychological and vocational evaluation dated June 17, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     861224 - 861229  COG

 Period of Service Under Review :
Date of Enlistment: 861230               Date of Discharge: 890721

 Length of Service (years, months, days):

         Active: 02 06 22
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4

 Education Level: 12                        AFQT: 54

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.33 (3)    Behavior: 3.07 (3)                OTA : 3.13

 Military Decorations: None

 Unit/Campaign/Service Awards: AFEM, SSDR

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

880331:  NJP for violation of UCMJ, Article 92: Disobey a lawful order, violation of UCMJ, Article 91: Assault.
         Award: Forfeiture of $329 per month for 2 months, restriction and extra duty for 30 days. No indication of appeal in the record.
880525:  NJP for violation of UCMJ, Article 92: Dereliction to duty, violation of UCMJ, Article 92: Disobeying a lawful order, violation of UCMJ, Article 113: Sleeping upon his post.
         Award: Forfeiture of $150 per month for 2 months, restriction and extra duty for 45 days, reduction to SR. Reduction suspended for 6 months. No indication of appeal in the record.
880611:  Retention Warning: Advised of further deficiencies in your performance and/or conduct may result in disciplinary action and in processing for administrative discharge.
         
890324:  NJP for violation of UCMJ, Article 86: Going from his appointed place of duty on 11Mar89, violation of UCMJ, Article 91 (2 specs): (1) Disrespectful in language to a superior petty officer on 11Mar89, (2) Disrespectful in language to a superior petty officer on 12Mar89, violation of UCMJ, Article 117: Wrongfully use provoking words to a superior petty officer on 11Mar89, violation of UCMJ, Article 128 (2 specs): Assault a superior petty officer on 11Mar89, (2) Assault a fellow shipmate on 24Mar89.
         Award: Forfeiture of $300 per month for 2 months, bread and water for 3 days, reduction to SA. No indication of appeal in the record. [Extracted from Commanding Officer's letter dated June 2, 1989.]
890601:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
890601:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
890602:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

890711:  CNMPC 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 890721 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).

 Issue 1. The applicant requested his discharge be upgraded to Honorable and the reason changed to “Personality Disorder.” The Board carefully reviewed the applicant’s service records and all supplemental documentation provided. The Board found the applicant was separated for misconduct that included three NJP’s in 30 months of service. The Board found no impropriety or inequity in the discharge. The Other Than Honorable discharge accurately characterizes the applicant’s service. Relief is denied.

The applicant requested the reason for discharge be changed to personality disorder. The Board will change the reason for discharge if appropriate. The record shows the applicant was processed for his commission of a serious offense. There is nothing in the record that shows the applicant was not responsible for his actions while on active duty. The Board considered the applicant’s documentation from Behavioral Health Services as well as his medical record. The evidence provided did not sufficiently prove that the applicant had a medical condition while on active duty that mitigated his misconduct. No other reason would describe the reason for discharge. Relief is denied.

 The following is provided for the benefit of the applicant. 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 clemency, based on post-service conduct. The applicant did not provide any of these documents. 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.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A), Change 6, effective
11 Jan 89 until 24 May 89, 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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