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NAVY | DRB | 2004_Navy | ND04-00621
Original file (ND04-00621.rtf) Auto-classification: Denied


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

ex-UT3, USN
Docket No. ND04-00621

Applicant’s Request
The application for discharge review was received on 20040302. 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 San Bernardino, CA. 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 NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

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 of the discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “Discharge Authority did not provide proper rehab after I completed a stressful tour of duty in Bosnia. After the tour I was returned to Guam where an homosexual attack on myself on which I felt I could not be reported to my superiors preyed on me to the point of causing a mental breakdown. I was a 3.5 – 4.0 sailor prior to discharge and was not provided guidance or treatment for my trauma.”

 Applicant’s issues, as stated subsequent to the application:

2. “I can only state in my defense that I am a productive member of society, interested in correcting any mistakes I have made in the past and if my records are corrected I intend to join the USNR and work toward lifetime goals.

A copy of my DD 214 is attached.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214 (2 copies)
Character reference letter from R_ A. M_, CMS, USAF (ret.), dated 28 Nov 2003 (2 copies)
Mental Health Consult, dated 23 Mar 2000 (2 pages)
Letter from Applicant, dated 5 May 2004
Letter from Board of Correction of Naval Records, dated 3 Feb 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     960329 - 960909  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 960910                        Date of Discharge: 000504

 Length of Service (years, months, days):

         Active: 03 07 25
         Inactive: None

 Age at Entry: 27                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 38

 Highest Rate: UT3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (4)    Behavior: 2.75 (4)                OTA: 3.34

 Military Decorations: None

 Unit/Campaign/Service Awards: NUC, MUC, NER, AFEM, NATO, HSM, SSDR (3), ERM

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

 Chronological Listing of Significant Service Events :

980122:  Applicant diagnosed as alcohol dependent at CAAC Guam after three alcohol related incidents. [Extracted from chronological record of medical care]

980319:  NJP for violation of UCMJ, Article 86: Failure to go to appointed place of duty, violation of UCMJ, Article 134: Incapacitation for duty.
         Award: Forfeiture of $519 per month for 2 months, restriction for 60 days, reduction to E-2. No indication of appeal in the record.

980319:  Retention Warning: Advised of deficiency (Failure to go to appointed place of duty, and incapacitation for duty as evidenced by CO’s NJP on 980319), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

980417:  Applicant completed full day comprehensive Level II SARD treatment, San Diego, CA. [Extracted from chronological record of medical care]

000115:  Applicant placed in one year after care program at request of Command based on an unfit for duty incident. [Extracted from chronological record of medical care]
000310:  Applicant diagnosed with post-traumatic stress disorder.

 000330:  NJP for violation of UCMJ, Article 86: Absent from appointed place of duty; violation of UCMJ, Article 134: Drunkenness, incapacitation for performance of duties through prior indulgence in intoxicating liquor.
         Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 30 days, reduction to E-3. (Reduction, forfeiture of pay, and 16 days of restriction and extra duties suspended for 6 months). No indication of appeal in the record.

000330:  Retention Warning: Advised of deficiency (Assault and overindulgence of alcohol as evidenced by CO’s NJP on 000330), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

000424:  Applicant notified of intended recommendation for discharge with a least favorable characterization of general (under honorable conditions) by reason of misconduct due to a pattern of misconduct and alcohol rehabilitation failure.

000427:  Commanding Officer vacated suspension of punishment from NJP of 000330 as a result of continuing misconduct, as evidenced by violation of UCMJ Article 128: Assault consummated by a battery on 000415.

000427:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation

000427:  Commanding Officer directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000504 with a general (under honorable conditions) for misconduct due to a pattern of misconduct (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: Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question. No impropriety or inequity is evident during the Applicant’s enlistment. The Applicant contends that he was the victim of a homosexual assault and that he was improperly denied treatment for his trauma. Contrary to the Applicant’s allegations, the Board found no indication in the record that the Applicant was inequitably or improperly denied treatment for any of his problems. The record indicates that the Applicant completed Level II SARD treatment and was participating in a one year aftercare program for the treatment of his alcohol dependence. Likewise, the record indicates that the Applicant’s diagnosed post-traumatic stress disorder was being effectively treated through counseling at the Fleet Support Center. The Applicant’s allegations, that he was denied assistance and counseling for his personal problems are not supported by the record and do not refute the presumption of regularity in this case. As a result, 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 2: 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. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Verifiable proof of post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. At this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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 his 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 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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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