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NAVY | DRB | 2002_Navy | ND02-00116
Original file (ND02-00116.rtf) Auto-classification: Denied


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

ex-SN, USNR
Docket No. ND02-00116

Applicant’s Request
The application for discharge review, received 011017, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to “The Truth”. The applicant requested a documentary record discharge review. The applicant designated the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020715. 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 narrative reason of the discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.

The NDRB did note an administrative error on the original DD Form 214. Block 12a, Date Entered AD This Period, should read: "94SEP21" vice "94AUG12", Block 12c, Net Active Service This Period, should read: "02 11 21" vice "03 01 00", and Block 25, Separation Authority, should read: “3630605” vice “3630600”. The original DD Form 214 should be corrected or reissued as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. (Equity Issue) This former member proffers that symptoms of his delusional disorder and severe personality disorder caused and sufficiently mitigated his misconduct of record to warrant a fully honorable discharge.

2. (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 ( 2 copies)
 Applicant's letter of Mar 20, 1997 to President, PEB, not accepting the preliminary findings of unfit for duty
PEB Preliminary Findings of Mar 14, 1997
BCNR decision dated Feb 23, 2001 (2 copies)
Dept of VA's decision of claim dated Dec 18, 2001 (14 pages) (2 copies)
Congressional Aide, S_ J. M_, letter to applicant dated Jul 30, 1997 (2 copies)
DFAS letter of Jul 23, 1997, to Honorable A_ L. H_, dated Jul 23, 1997 (3 copies)
BCNR letter dated Mar 16, 2001, directing Applicant to the NDRB (2 copies)
Back Page of Evaluation Report dated Mar 29, 1996 (3 copies)
Applicant's letter of Oct 9, 1997 to SECNAV asking all records be sent to NAACP (2 copies)
Character Reference letter from BMC(SW) O_ B. W_, concerning Veterans Benefits (2 copies)
Dept of VA letter of Dec 11, 2001 regarding applicant's claim (7 pages) (2 copies)
Information on the Seaman Enlistment Program (2 copies)
DD Form 1999/DD Form 398-2 (Enlistment documents) (some unreadable) (6 pages) (3copies)
Applicant's letter to Mr. S_, American Legion, dated Feb 26, 2002
NAACP request dated Nov 13, 1997, to SECNAV requesting applicant's record (2 copies)
VA's Rating decision dated Dec 7, 2001 (5 pages)

PART II - SUMMARY OF SERVICE

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

 Period of Service Under Review :
Date of Enlistment: 940812               Date of Discharge: 970911

 Length of Service (years, months, days):

         Active: 02 11 21
         Inactive: 00 01 10

 Age at Entry: 19                          Years Contracted: 8

 Education Level: 12                        AFQT: 51

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.0 (3)     Behavior: 3.0 (3)                 OTA: 2.93

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, Navy "E" Ribbon

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.

 Chronological Listing of Significant Service Events :

940921:  Commenced 36 months active duty under the Seaman Apprenticeship Program.
960719:  NJP for violation of UCMJ, Article 86: unauthorized absence, spec: did, on or about 0730, 9JUL96, without authority, absent himself from his place of duty at which he was required to be, to wit: Navy barge YR-36 located at Naval Shipyard Pearl Harbor, HI and remain so absent until 0820, 09JUL96.
         Award: Forfeiture of $490 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.

960723:  Retention Warning: advised of deficiency, notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. [EXTRACTED FROM CO'S LTR OF 15 May 97 - NOT IN SERVICE RECORD.]

961210:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 96DEC10 having been an unauthorized absentee since 96DEC04 from ARCO (ARDM 5). Member was TAD to NAVMEDCEN San Diego at time of start of UA.

961212:  Report of Return of Deserter. Applicant surrendered to military authorities on 96DEC11 at NAVMEDCEN San Diego and returned to military control. Transferred to ARCO (Parent Command) for disposition.
970314:  PEB Preliminary Finding recommended separation without benefits due to delusional disorder, EPTE.
970417:  Applicant notified of intended recommendation for discharge under honorable conditions (general) by reason of misconduct due to the commission of a serious offense as evidenced by report Chit on 10 Apr 97. [Applicant refused to acknowledge receipt of letter of notification.]
970421:          Applicant advised of his rights but refused to sign the letter of awareness and rights.
970515:  Commanding Officer advised BUPERS that applicant was discharged with a 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 970911 with a 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).

Issue 1. The Board found the applicant’s disobedience of orders and assault committed on or about 10 April, 1997 constituted the commission of a serious offense. A sailor may be processed for involuntary separation for the commission of a serious offense regardless of whether the offense results in non-judicial punishment or court martial. The Board found the applicant was diagnosed with a personality disorder prior to his discharge. However, discharge by reason of misconduct takes precedence over discharge for medical reasons. No other narrative reason other than misconduct more clearly describes the circumstances surrounding the applicant’s processing for administrative separation. The Board found that the applicant’s age, education level, and test scores qualified him for enlistment. A complete psychiatric examination was not required of the applicant as part of his recruitment to active duty. While he may feel that his personality disorder was a factor 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. In addition, the Board found no documentation to support the applicant’s claim that he was unfairly denied any rights during his discharge proceedings. Relief denied.

The Veterans Administration determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Issue 2. 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 14, effective
03 Oct 96 until 971212, Article 3630605, 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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