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NAVY | DRB | 2002_Navy | ND02-01076
Original file (ND02-01076.rtf) Auto-classification: Denied


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

ex-ENFR, USN
Docket No. ND02-01076

Applicant’s Request
The application for discharge review, received 020725, 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 030410. 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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. My discharge was supposed to be a medical discharge, but because of one isolated incident. I now have an other than honorable discharge. When this incident happened I was awaiting my papers to be processed for a medical discharge. I feel my discharge should be changed to a General discharge. So that I may obtain medical benefits for my injury (Pattella femoral syndrome) that is in my right knee. Which occurred while I served in the military.
Thank you for considering my request. I do hope you can grant me a General Discharge.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
The Applicant listed three items ("medical records", "discharge paper DD-214", and "statement") as supporting documents; however, they were not attached to the DD Form 293. Statement to this effect was included on the application letter, dated 020730 to the Applicant.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     960619 - 960813  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 960814               Date of Discharge: 991025

 Length of Service (years, months, days):

         Active: 03 02 12
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 35

 Highest Rate: ENFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (3)    Behavior: 2.67 (3)                OTA: 2.74

 Military Decorations: None

 Unit/Campaign/Service Awards: NER, AFEM

 Days of Unauthorized Absence: 18 : (6)981207-981212; (12)981219-981230

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

 Chronological Listing of Significant Service Events :

981206:  Applicant to unauthorized absence at 1745 on this date; returns from UA at 1817 on 981212 (6 days/surrendered).

981202:  NAVMEDCEN PORTSMOUTH VA Abbreviated Limited Duty Medical Board Report: Applicant diagnosed with right-knee Patello-Femoral Syndrome (PFS); placed on period of limited duty for 6 months; directed to report to Personnel Support Detachment for orders. Report reviewed and discussed with Applicant.

981218:  Applicant to unauthorized absence at 1745 on this date; returns from UA at 1745 on 981230 (12 days/surrendered).

990106:  NAVMEDCEN PORTSMOUTH VA Endorsement in lieu of Temporary Additional Duty Orders: Applicant directed to return to parent command for administrative and medical out-processing and subsequent transfer to Transient Personnel Unit, Norfolk, VA for medical board processing.

990112:  Temporary Duty Transfer Message 121124Z JAN 99 from USS GEORGE WASHINGTON to NAVMEDCEN PORTSMOUTH VA: Applicant currently on legal hold pending NCIS investigation and possible court- martial proceedings. Transfer for medical board processing held in abeyance pending completion of legal action.

990324:  CO, USS GEORGE WASHINGTON (CVN 73) letter to CO, Transient Personnel Unit, Norfolk, VA: Applicant transferred to TPU for medical hold due to ship's underway schedule.

990604:  Counseling: Advised of deficiencies (performance, responsibilities, and reliability). Notified of corrective actions and assistance available.

990610:  Counseling: Advised of deficiencies (responsibilities, personal behavior, and reliability). Notified of corrective actions and assistance available.

990621:  NAVMEDCEN PORTSMOUTH VA Limited Duty Reevaluation: Medical Board dictated referring Applicant's case to the central Physical Evaluation Board.

990623:  Counseling: Advised of deficiencies (responsibilities and personal behavior). Notified of corrective actions and assistance available.

990702:  NJP for violation of UCMJ Article 86 (3 specs): (1) Failure to go to appointed place of duty at 0630 on 990624, (2) Failure to go to appointed place of duty at 0630 on 990630, (3) Failure to go to appointed place of duty at 0630 on 990701.
         Award: Extra duty for 45 days, reduction to ENFA. No indication of appeal in the record.

990702:  Retention Warning: Advised of deficiency (violation of UCMJ Article 86 (three specifications), failure to go to appointed place of duty). Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

990819:  NJP for violation of UCMJ Article 86: Failure to go to appointed place of duty at 0630 on 990813, to wit: morning quarters; violation of UCMJ Article 121: Larceny on 990801, to wit: stealing from SN, a Pagemart Motorola pager.
         Award: Forfeiture of $479 per month for 2 months, restriction and extra duty for 45 days, reduction to ENFR. No indication of appeal in the record.

990819:  Applicant notified 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.

990819:  Applicant advised of rights and elected all rights except the right to appear before an administrative discharge board.

990825:  Naval Legal Defense Service Office, Norfolk, VA: Request for Discovery in Applicants case states Applicant discussed separation process with counsel this date and, as a result, has requested an administrative board.

990903:  Applicant again notified of intended recommendation for discharge and advised of rights. [First page of Notification/Rights Advisement indicating the rights the Applicant waived is not found in records].

990920:  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. Recommendation letter indicates that Applicant waived his right to an Administrative Discharge Board. Commanding Officer comments: "ENFR [Applicant] was stationed on board the USS GEORGE WASHINGTON (CVN 73), prior to his transfer to Naval Station Norfolk. While on board the (GW) he was under investigation by Naval Criminal Investigative Service for having sex with a fifteen-year-old female not his wife. The parents of the minor chose not to press charges because they were leaving the area. Moreover, there is documentation of unauthorized absence in ENFR [Applicant]'s service record for a six and twelve day period, respectively. The ship did not process these absence as they were awaiting the results of the aforementioned NCIS investigation. Since ENFR [Applicant]'s stay at Naval Station Norfolk, he has been to Commanding Officer's Nonjudicial Punishment twice; most recently for stealing a pager. The facts associated with this incident as well as all previous misconduct and allegations of misconduct, charged or otherwise, clearly illustrates that this sailor has no potential for continued naval service. His lack of regard for civilian and military laws and regulations cannot be tolerated. I recommend that ENFR [Applicant] be separated from the naval service with an Other Than Honorable discharge."

991007:  Commander, Navy Region, Mid-Atlantic 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 991025 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 Applicant contends that his being processed for administrative separation due to misconduct was improper as he was already being processed for a medical discharge due to diagnosed Patello-Femoral Syndrome (PFS). Navy Instructions specifically state that a Sailor will be separated from military service if warranted on the basis of unsatisfactory performance or misconduct regardless of the existence of a physical condition. While the Board recognizes the Applicant's physical condition, as diagnosed by medical authority, such condition does not mitigate any misconduct undertaken by the Applicant. The records that the Board reviewed showed that the Applicant repeatedly violated the UCMJ and that he was accountable for his actions. This evidence of misconduct warranted a characterization of service normally under other than honorable conditions. The Applicant’s service is equitably characterized due to the Applicant's three derogatory counseling entries, two periods of unauthorized absence, two nonjudicial punishments, and the Commanding Officer's recommendation for discharge. Relief on this basis is denied.

The following is provided for the edification of the Applicant. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge even though there is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. 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. Verifiable proof of 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. E vidence of continuing educational pursuits, an employment record, documentation of community service, and certification of non-involvement with civil authorities are examples of documents that may be provided to the Board to receive consideration of relief based on post-service conduct. At this time, the Applicant has provided no such documentation for the Board to consider.

 The Applicant 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. Representation at a personal appearance hearing is recommended but not required.


Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - 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 “ afls14.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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