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NAVY | DRB | 2003_Navy | ND03-01226
Original file (ND03-01226.rtf) Auto-classification: Denied


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

ex-OSSN, USN
Docket No. ND03-01226

Applicant’s Request
The application for discharge review was received on 20030710. The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions. The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20040514. 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. “I would just like to use this space to explain my side of the story. The only thing that could stress to you in this matter that you may consider upgrading my discharge to at least a general if not honorable for the simple fact that everyone goes through hard times in their life. Even sometimes it affects my work. All I was doing was going thru a hard time where I hardly got the help I wanted and needed instead I was criticized for it by my upper chain of command to which they was very unprofessional about it. So instead of helping me and believing my story I was sent to captain’s mast and booted out of the Navy. So now I just ask you to review my case overlook it and please I would actually like to at least get my MGI Bill because I paid into it and I’m trying to go back to school to get my college degree but I need my MGI Bill which I paid for. I think I deserve to get it if not anything since I am no longer a member of the Armed Forces. At the time I was seeing a psychologist so my discharge should have been Honorable but wasn’t. This was only one time in my career where I messed up and I think I deserve a second chance. Hopefully you will think the same. Thank you.”

 Applicant marked the box "I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION." None were found.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Character reference, undated
Character reference, undated
Character reference, dated June 27, 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     990528 - 000103  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 000104               Date of Discharge: 020823

 Length of Service (years, months, days):

         Active: 02 07 20         Does not exclude lost time
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 33

 Highest Rate: OS3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*        Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: N&MCOSR (2), NDSM, NATO

 Days of Unauthorized Absence: 4

*No marks found in service record.

 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 :

020619:  Incident report of aggravated assault involving Applicant and Seaman W_.

 020726:  Oxnard Police Department investigating alleged charges against Applicant of assault with a deadly weapon, hit and run, and criminal threats.
020726:  Medical evaluation: Applicant is currently in FMH Navasta per Command to be evaluated for suicidal ideation as well as homicidal ideation. No further information found in service record.
020726:  Military protective order issued to Applicant.

020729:  Naval Criminal Investigative Service Report.

 020808:  NJP for violation of UCMJ, Article 86 (3 specs): (1) Unauthorized absence from 0600, 020718 to 0700, 020722 (4 days), (2) Unauthorized absence from 0750, 020725 to 0700, 020726, (3) Unauthorized absence from 0700-1000, 020808, violation of UCMJ, Article 128 (2 specs): (1) Assault on Seaman W_ on 020719, (2) Attempted to assault Seaman W_ on 020725, to wit: attempting to strike her with a passenger vehicle likely to produce death or grievous bodily harm, violation of UCMJ, Article 111: Reckless operation of vehicle on 020725, to wit: bumping another vehicle, violation of UCMJ, Article 134: Communicating a threat on 020725, to wit: “UR are gonna get it,” I’m gonna kill U” and “I hope U die. ”
         Award: Forfeiture of $692 per month for 2 months, restriction and extra duty for 45 days, reduction to OSSN. No indication of appeal in the record.
020809:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and convenience of the government due to personality disorder.
020809:  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.
020814:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and convenience of the government due to personality disorder.

020816:  Commander, Navy Region Southwest 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 20020823 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. The Applicant states “This was the only time in my career where I messed up and I think every[one] deserves a second chance.” The civilian authorities treat some offenses with leniency because they are a first time incident on an otherwise clear record; however, despite a servicemeber’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for three violations of Article 86, unauthorized absence, two violations of Article 128, assault, as well as violations of Articles 111 and 134, thus substantiating the misconduct for which she was separated. The evidence of record does not demonstrate that the Applicant was not responsible for her conduct or that she should not be held accountable for her actions. Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board. 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as requested in the issue. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Relief denied.

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 documentation to support any claims of post-service accomplishments or any other evidence related to her discharge 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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