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NAVY | DRB | 2003_Navy | ND03-00824
Original file (ND03-00824.rtf) Auto-classification: Denied


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

ex-ENFR, USN
Docket No. ND03-00824

Applicant’s Request
The application for discharge review was received on 20030407. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a documentary record discharge review. The Applicant listed NC Division of Veterans Affairs as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040303. 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/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“1. Most of the trouble I had in the military was due to my nervous condition. I was treated for my nerves I the service and my conditions kept getting worse to the point that I just “went Crazy” I did not know how to handle my financial affairs and kept getting in trouble with my checking account being overdrawn. I feel the Navy could have treated my condition and helped me deal with or teach me how to handle my finances. I am still having trouble with my nerves at this time and I need medical assistance from the VA. I request that the Navy please upgrade my discharge so that I may seek medical assistance from the VA Medical Center. Thank you.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Reference Letter dated March 13, 2003
Reference Letter
Copy of Report of Medical Assessment
Copy of Report of Medical Examination
Copy of Authorization to Release of Information (2 pages)
Copies of Final Separation Report (2)
Copy of Questionnaire for National Security Position (2 pages)
Copy of Commanding Officer Administrative Separation Recommendation (3 pages, 2 Copies)
Copy of Continuation of NAVPERS 1626/6 (Charge Listing 6 pages, 2 Copies)
VA Appointment Application
Copies of Commander’s Discharge Authorization (2)
Copies of Enlisted Strength Loss Document (2)
Copies of Report and Disposition of Offense (s) (2)
Copies of CO’s Preliminary Inquiry Report (2)


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     980909 - 980920  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 980921               Date of Discharge: 010726

 Length of Service (years, months, days):

         Active: 02 10 06
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 49

 Highest Rate: ENFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA*        Behavior: NMA            OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

* No Marks Available for review

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

990915:  NJP for violation of UCMJ, Article 121: (2 specifications), Larceny, violation of UCMJ Article 123: (2 specifications), Forgery.
         Award: Forfeiture of $200.00 pay per month for 1 month (suspended for 6 months), correctional custody for 30 days. No indication of appeal in the record.

010412:  NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance, marijuana.
         Award: Forfeiture of $534.00 pay per month for 1 month, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
010712:  NJP for violation of UCMJ, Article 123a (20 specifications): Making or drawing or uttering checks, drafts or order without sufficient funds.
         Award: Restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.

010716:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
010716:          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.
010717:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. Commanding Officer’s comments (verbatim): [ENFR G__ was found guilty at two separate Captain’s Mast for wrongful use of drugs and charges of larceny and forgery. He subsequently went to an Administrative Board. Prior to his discharge, ENFR G__ was processed again for commission of serious offenses for 20 specifications of making and drawing on checks with insufficient funds to cover them. ENFR G__ waived his rights to an Administrative Board and agrees to be separated from the Naval Service with an Other Than Honorable discharge.]

010725:  Commander, Navy Region Hawaii authorized 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 20010726 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: 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 nervous condition 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 three separate occasions thus substantiating the misconduct. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing medical benefits as requested in the issue. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. Relief denied.

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, 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 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, Article 1910-142 [formerly 3630605]. SEPARATION 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 " 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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