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NAVY | DRB | 2004_Navy | ND04-00569
Original file (ND04-00569.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND04-00569

Applicant’s Request
The application for discharge review was received on 20040224. 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 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 20041001. 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 and narrative reason 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 was admitted to the Naval Hospital on Oct. 22 with severe head trama. Surgery was performed on Oct 23 to insert a metal plate and to close skull fractures. I was discharged from the hospital on Oct 24 th and flew home on Oct. 25 th . I continued to take the prescription medication issued by the Naval Hospital for approximately two weeks. I went to my family physician on Monday, Oct 28 to check for infection as instructed by the navy. I returned to my family physician on November 7, 2002 to have my stitches removed. He gave me additional prescriptions for an additional two weeks.

I request that my discharge me upgraded to a general discharge for medical reasons and that my discharge date be moved from 20021019 to 20021125.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214 and 215

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     001028 - 001115  ELS
                  USNR (DEP)      010228 – 010321  COG                       
         Active: None

 Period of Service Under Review :
Date of Enlistment: 010322               Date of Discharge: 021019

 Length of Service (years, months, days):

         Active: 01 06 28
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 10               AFQT: 52

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.00 (1)    Behavior: 1.00 (1)                OTA: 1.33

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 30

 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 :

020610:  NJP for violation of UCMJ, Article 86: UA between 020225 to 020320 and from 020605 to 020610.
         Award: Restriction and extra duty for 45 days, reduction to AR. No indication of appeal in the record.
020610:  Retention Warning: Advised of deficiency (NJP for UA), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020925:  Summary Court-Martial.
 Charge I: Violation of UCMJ, Article 86 (3 specs): UA on 020913, from 020919 to 020921, and on 020922.
Charge II: Violation of UCMJ, Article 92: Disobeying a lawful written order on 020921.
Charge III: Violation of UCMJ, Article 107: False official statement on 020917.
Finding: Cannot be determined from available records.
Sentence: Forfeiture of $770.00 and 30 days confinement.

 020925:  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 due to a pattern of misconduct.

020925:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
020930:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and due to a pattern of misconduct.

021015:  Commander, Cruiser-Destroyer Group Five 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 20021019 under other than honorable conditions for misconduct due to the 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. 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 Applicant’s service was marred by award of nonjudicial punishment and a summary court-martial. The Applicant’s disobedience of lawful written orders and false official statements are considered serious offenses. No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation. The Board found no error in the Applicant’s date of discharge. The Applicant’s head trauma neither mitigates his misconduct nor provides a basis for administrative separation. 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.
The Applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety 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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