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NAVY | DRB | 2004_Navy | ND04-00116
Original file (ND04-00116.rtf) Auto-classification: Denied


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

ex-CTOSN, USN
Docket No. ND04-00116

Applicant’s Request
The application for discharge review was received on 20031022. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant listed the Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040715. 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 HONORABLE CONDITIONS (GENERAL)/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 . My discharge was inequitable because of illegal pretrial punishment.

2. Unlawful command influence which made this case handled in an unusual manner.

3. I’ve lost a substantial amount of benefits cue to the characterization of my discharge. One of the biggest being my MGI Bill which I would really need to further my career and education.

4. Lastly due to the nature of this case even if I was found guilty I would not have received a bad conduct discharge. It’s apparent that I was denied due process of law to have the merits of this case heard and decided upon because of this outcome. I truly would like the opportunity to go to school and protect and serve my country again .”

The Applicant indicated that additional issues were submitted. None were found.

Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS):

5. “We concur with the applicant’s contention that his discharge be upgraded.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Forty-six pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     981210 - 990118  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 990119               Date of Discharge: 021202

 Length of Service (years, months, days):

         Active: 03 10 00
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 55

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.00 (3)    Behavior: 1.67 (3)                OTA: 1.83

 Military Decorations: None

 Unit/Campaign/Service Awards: AFEM, SSDR, NDSM

 Days of Unauthorized Absence: None

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

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

 Chronological Listing of Significant Service Events :

000629:  NJP for violation of UCMJ, Article 134: Disorderly conduct.
         Award: Forfeiture of $502.00 (forfeiture modified on 000825), restriction and extra duty for 45 days (5 days restriction and extra duties suspended for 6 months). No indication of appeal in the record.
001026:  Discharged after being admitted to the NMCSD psychiatric ward on 001024 due to suicidal ideation. Diagnosed with alcohol dependence, narcissistic and antisocial personality features.
020910:  SPCM charge sheet. Violation of the UCMJ, Article 86: UA from place of duty on 020808; violation of the UCMJ, Article 90: Disobeyed lawful order from Capt. F_ to report to the Command Master Chief; violation of the UCMJ, Article 91 (3 specs): Disobeyed order from CPO M_ to not use the phone, disobeyed order from GTST1 on 020805 to not drive a car through a gate, and disobeyed order to not park in a designated no parking area; violation of the UCMJ, Article 134: Behave in a disrespectful manner towards a sentry on 020805.

Undated:         Above charges withdrawn [Extracted from Defense counsel letter of 021108].

021011:  SPCM charge sheet. Violation of the UCMJ, Article 86: UA from place of duty on 020808; violation of the UCMJ, Article 90: Disobeyed lawful order from Capt. F_ to report to the Command Master Chief; violation of the UCMJ, Article 91 (3 specs): Disobeyed order from CPO M_ to not use the phone, disobeyed order from GTST1 on 020805 to not drive a car through a gate, and disobeyed order to not park in a designated no parking area; violation of the UCMJ, Article 134: Behave in a disrespectful manner towards a sentry on 020805.

021011:  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 by reason of misconduct due to a pattern of misconduct.

021104:  Applicant notified of intended recommendation for discharge under honorable conditions (general) by reason of misconduct due to the commission of a serious offense and by reason of misconduct due to a pattern of misconduct.

021104:          Applicant refused to acknowledge rights. The failure to acknowledge rights constitutes the waiver of all rights afforded.
021108:          Detailed defense counsel requests GCMCA disapprove pending administrative separation.

021202:  DD Form 214: discharged under honorable conditions (general) for misconduct due to commission of a serious offense.

Partial discharge package

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021202 under honorable conditions (general) for misconduct due to commission of a serious offense (A). In the absence of a complete discharge package, the Board presumed regularity in the conduct of governmental affairs (B) and, after a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

 Issues 1-2, 4-5. A characterization of service of under honorable conditions (general) 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 award of nonjudicial punishment (NJP) on one occasion and the referral of charges which included the commission of serious offenses to a special court-martial on another occasion. Administrative separation by reason of commission of a serious offense does not require adjudication by non-judicial or judicial proceedings; however, the offense must be substantiated by a preponderance of evidence. The documentation and statements provided by the Applicant do not refute the presumption that the serious offenses occurred. In addition, the documentation and statements provided that allege illegal pre-trial punishment, unlawful command influence and denial of due process were factors in this case do not refute the presumption that the administrative separation proceedings were proper and equitable. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.
Issue 3. The Veterans Administration determines eligibility for post-service benefits, not the NDRB. 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.

The Applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident during the Applicant’s enlistment. Additionally, 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. Relief not warranted.

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.

The Applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident during the Applicant’s enlistment. Additionally, 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. Relief not warranted.

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), re-issued October 2002, effective 22 Aug 02 until Present, 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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