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NAVY | DRB | 2004_Navy | ND04-00619
Original file (ND04-00619.rtf) Auto-classification: Denied


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

ex-MSSN, USN
Docket No. ND04-00619

Applicant’s Request
The application for discharge review was received on 20040304. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge 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 20050201. After a thorough review of the available 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: GENERAL (UNDER HONORABLE CONDITIONS)/CONDITION, NOT A DISABILITY, authority: NAVMILPERSMAN, Article 1910-120 (formerly 3620200).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “I believe I deserve an honorable discharge because I served four and a half years out of a five year enlistment. I think I served honorable for those years and should be awarded an honorable discharge. I now have a general under honorable discharge, which means I cannot use my Montgomery GI bill, in which I paid $1200. Furthermore, I wish to be judged for the time that I did give to the United States Navy, and hope that I be awarded an honorable discharge so I can excel, here in civilian life”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
One medical page from Applicant’s service
One page from a medical decisional document

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     930625 - 940413  ELS
                  USNR (DEP)      940416 - 940613  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 940614               Date of Discharge: 981223

 Length of Service (years, months, days):

         Active: 04 06 10
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 72

 Highest Rate: MSSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.17 (6)             Behavior: 2.50 (6)                OTA: 2.90

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM, NATO, AFSM, NUC, SSDR (2), LoC

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/CONDITION, NOT A DISABILITY, authority: NAVMILPERSMAN, Article 1910-120 (formerly 3620200).

 Chronological Listing of Significant Service Events :

950522:  NJP for violation of UCMJ, Article 128: Assault another service member on 950510 by pointing a knife at him, violation of UCMJ, Article 134: Communicating a threat on 950509 to another service member by saying “I’ll kill you mother f______.”
         Award: Forfeiture of $427 per month for 1 month, restriction and extra duty for 30 days, reduction to E-1. No indication of appeal in the record.
950523:  Retention Warning: Advised of deficiency (Assault consummated by a battery and communicating a threat), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
950919:  NJP for violation of UCMJ, Article 92: Disobeying a lawful written order, to wit: wrongfully consuming alcohol while on Class Alpha liberty risk.
         Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 30 days. No indication of appeal in the record.
950921:  Retention Warning: Advised of deficiency (Disobeying a lawful written order.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
961119:  Civil Conviction: General District Court, Traffic Division, Norfolk, VA for violation of drive at night with no lights and unlicensed operator.
 Sentence: Fine $125.00 plus court costs.
970430:  NJP for violation of UCMJ, Article 92: Dereliction of duty, violation of UCMJ, Article 107: False official statement.
         Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 30 days, reduction to E-2. Reduction suspended for 6 months. No indication of appeal in the record.
980930:  Orthopedic evaluation: Diagnosis: Mechanical low back pain. [Extracted from supporting documents furnished by the Applicant.]
981106:  Report of Medical History: Block 25: Chronic lower back pain has been reviewed by orthopedic NMCP with clear cut etiology. Applicant to be administratively separated rather than “med boarded.”
981223:  DD Form 214: Applicant discharged general (under honorable conditions) by reason of convenience of the government due to a physical or mental condition, not a disability, authority: NAVMILPERSMAN, Article 1910-120.

 Applicant’s discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19981223 with a general (under honorable conditions) characterization for convenience of the government due to a physical or mental condition, not a disability (A). 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 (B and C). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

Issue 1. 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. A general 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 three nonjudicial punishment proceedings for violations of Articles 92, 128 and 134 of the UCMJ and a civil conviction for driving at night with no lights while unlicensed. 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 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. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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. 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 18, effective
12 Dec 97 until 19 May 99, Article 1910-120 (formerly 3620200), SEPARATION BY REASON OF CONVENIENCE OF THE GOVERNMENT - PHYSICAL OR MENTAL CONDITIONS.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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 “ http://Boards.law.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:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023



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