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NAVY | DRB | 2003_Navy | ND03-00867
Original file (ND03-00867.rtf) Auto-classification: Denied

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

ex-ADAR, USN
Docket No. ND03-00867

Applicant’s Request
The application for discharge review was received on 20030424. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance discharge review before a traveling panel closest to [left blank]. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area. The Applicant failed to respond by the deadline date to a letter requiring the Applicant to notify the Naval Discharge Review Board of intention to be present for the requested personal appearance hearing. Therefore, a documentary review was conducted, and the Applicant is not eligible for further review by this Board

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040728. 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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “I asked for emergency leave from Bermuda to Atlanta because my newlywed wife had become homeless. I was denied. My senior chief made arrangements to move my wife to Jacksonville FL. to stay with his wife and children

2. My wife tried to come and go as she pleased. My senior chiefs wife tried to stop her from leaving one night and my wife attacked her severly in front of her children and caused damage to their home

3. I was called in the Senior Cheifs office. He begin to shout at me and throw things, blaming me for not telling him about my wife’s violent nature. I became afraid for my life. He threatened me and said he wanted me out of his Navy. He stated that when he finnished with me, Mcdonalds wouldnt even hire me.

4. He then changed my detail to cleaning the chiefs barracks. Restricting me to isolation until my discharge papers came. I became an outcast among my family. Couldnt hold a job for long. My GI Bill was taken from me, I turned to drugs and alcohol. These situations coupled with others began suicidal thoughts. These issues along with childhood issues call for therapy.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Letter from a doctor at Grady Health System, dated January 31, 2003
Letter from an APRN and a doctor at Grady Health System, dated March 18, 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     870930 - 880301  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 880302                        Date of Discharge: 890317

 Length of Service (years, months, days):

         Active: 01 00 16
         Inactive: None

 Age at Entry: 18                                   Years Contracted: 4

 Education Level: 12                                 AFQT: 50

 Highest Rate: ADAA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.30 (4)    Behavior: 2.30 (4)                OTA : 2.30

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 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 :

881201:  NJP for violation of UCMJ, Article 86: Failure to go to appointed place of duty on 881120.
         Award: Restriction and extra duty for 15 days. No indication of appeal in the record.
890201:  NJP for violation of UCMJ, Article 123A (3 specs): (1) With intent to defraud and for the procurement of an airline ticket on 881217, wrongfully make and deliver to DELTA airlines a certain check in the amount of $362.00, (2) With intent to defraud and for the procurement of an item on 881222 wrongfully and lawfully make and deliver to U.S. Navy Commissary Store, Bermuda a certain check in the amount of $118.23, (3) With intent to defraud and for the procurement of an item, wrongfully and unlawfully make and deliver to U.S. Navy Exchange a certain check in the amount of $8.00, violation of UCMJ Article 92: Failure to obey a lawful order on 890113, to wit: to submit a financial budget, violation of UCMJ Article 91: Disobeying a warrant, noncommissioned or petty officer on 890123, to wit: to return to seat in order to finish a counseling session.
         Award: Restriction for 60 days, reduction to ADAR. No indication of appeal in the record.
890222:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
890222:  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.
890223:  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): SNM has received considerable counseling to correct deficiencies in performance and conduct. He has a negative impact on command morale, good order and discipline and safety concerns. He cannot be trusted in and around squadron aircraft. SNM has no potential for further productive service and is recommended for separation with a characterization of other than honorable.

890308:  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 19890317 under other than honorable conditions for misconduct due to commission of a serious offense (A & B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

Issues 1-4. When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. The Applicant’s service was marred by two nonjudicial punishment proceedings for six violations of the UCMJ to include violations of Article 86, for unauthorized absence, Article 91 for willfully disobeying a warrant, noncommissioned or petty officer, Article 92 for failing to obey and general order and Article 123a for intent to defraud. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The Applicant contends that his problems in the Navy can be attributed to his chief “threatening me and... he wanted me out of the navy.” While he may feel that the chief’s actions were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.


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. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 91, for willfully disobeying a warrant, noncommissioned or petty officer, Article 92 for failure to obey a general order and Article 123a for checks, intent to deceive if adjudged at a Special or General Court-Martial.

C. 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.

D. 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.

E. 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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