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NAVY | DRB | 2003_Navy | ND03-00379
Original file (ND03-00379.rtf) Auto-classification: Denied


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

ex-AZAR, USN
Docket No. ND03-00379

Applicant’s Request
The application for discharge review was received on 20030107. The Applicant requests that the characterization of service on the discharge be changed to honorable. The Applicant requests 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 20031215. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. 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 stated

 Applicant’s issues, as stated on the application:

“1. I am writing in regard to upgrading my discharge from under other than honorable conditions to honorable. I feel my discharge which was granted on Dec 4, 2001 was improper because of the following facts. I served my country the United States of America 3 years and 3 months proudly and honorably. I served in Kosvo and part of the Afghanistan war. On or about May 15, 2001 about 39 months into my enlistment. I began having some serious medical problems. I started experiencing panic attacks, extreme exhaustion and emotional problems while out at sea. Do to the nature of my conditions I did not seek medical help. At one point while out at sea I thought I was losing my mind. On or about 9/1/01 I attempted suicide by cutting my wrest. During my last 6 months of service my chief and senior personnel made fun of me ridiculed and harass me in front of my peers. One of my Co-workers MR. G___ observed the mistreatment and did not like it. Since my discharge Mr. G__ seen my brother P__ A. ___ and expressed his concern to my bother in regard to the open harassment & ridicule I experience. On or about Sept 15, 2001 I had a panic attack before leaving my parents house for my final 6 months deployment my parents who witness the panic attack, advice me to seek help once I boarded the ship, however with everything that happened with 9/11. I was to embarrassed an ashamed to seek any medical help. During this last and final deployment my medical condition seem to get worse. And I was discharged with only 3 months left on my enlistment. In conclusion if I could turn back the hands of time and was medically fit. I would serve my country again proudly and honorably.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copies of DD Form 214 (4)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     980304 - 980329  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 980330               Date of Discharge: 011204

 Length of Service (years, months, days):

         Active: 03 07 23
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 35

 Highest Rate: AZAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.00 (3)    Behavior: 1.66 (3)                OTA: 2.16

 Military Decorations: None

 Unit/Campaign/Service Awards: NUC, AFEM, NM, KCM, GCM, SSDR

 Days of Unauthorized Absence: 12

 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 :

011003:  NJP for violation of UCMJ, Article 86: (2 Specs) Unauthorized absence from unit (45 minutes and 9 days) and (1 Spec) failure to go to appointed place of duty on 010813, violation of UCMJ, Article 91: (6 Specs) failure to obey a lawful order from a First Class Petty Officer on 010925, from a Master Chief Petty Officer on 010816 and 010818, from a Chief Petty Officer on 010814, and (2 Specs) from a Second Class Petty Officer on 010814.
         Award: Confinement on Bread & Water for 3 days, forfeiture of $584.00 pay per month for 2 months, reduction to E-2. No indication of appeal in the record.
011004:  Retention Warning: Advised of deficiency (CO’s NJP held on 011003 for violation of the UCMJ, Article 86-Unauthorized absence from unit and Article 91-Failure to obey a lawful order from a Master Chief Petty Officer, Chief Petty Officer, First Class Petty Officer and a Second Class Petty Officer.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

011101:  NJP for violation of UCMJ, Article 91 (2 Specs): Failure to obey lawful order from a Chief Petty Officer on 011019 and a Senior Chief Petty Officer on 011019; violation of UCMJ, Article 92: Dereliction of Duty (failure to put tools away) on 011017; violation of UCMJ, Article 134: Falsify a no shave chit on 011006.
         Award: Forfeiture of $551.00 pay per month for 2 months, reduction to E-1. No indication of appeal in the record.
011101:  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.
011101:  Applicant advised of 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

011113:  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): [Through misconduct, AZAR B_ (Applicant) has demonstrated an inability to adapt to the Navy’s environment or live up to our standards of performance and personal conduct. Based upon that misconduct, I believe that AZAR B_ has not potential for further naval service and recommend that he be separated with an other than honorable discharge.]

011117:  Commander, Carrier Group EIGHT authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

011204:  Applicant discharged in Absentia.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged in absentia 20011204 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: 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. While he may feel that his medical problem was a contributing factor, it does not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service. His service record is marred by award of non-judicial punishment (NJP) on two separate occasions. A characterization of service of under other than honorable conditions is warranted when the member’s conduct constitutes a significant departure from that expected of a Sailor. The record is void of any evidence that the Applicant was treated unfairly or that he should not be held accountable for his actions. The Applicant’s conduct falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

 T here 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, a positive employment record, a drug-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. 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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