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NAVY | DRB | 2004_Navy | ND04-00622
Original file (ND04-00622.rtf) Auto-classification: Denied


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


ex-DA, USN
Docket No. ND04-00622

Applicant’s Request
The application for discharge review was received on 20040303. 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. Subsequent to the application, the Applicant obtained representation from the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041029. 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 like you to look at the pattern of my record of the commands I did not have any troubles until the NAS Fax. The harassment started there And the ongoing sickness of my family. I earned many awards and my certificates I have been proud to be a Naval Enlisted person. I deserve the chance to explain the unfortunate circumstances I went through at this command.”

Additional issues submitted by Applicant’s representative (Disabled American Veterans):

 2. “Dear Chairperson:
After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in her request for a discharge upgrade of her current Other Than Honorable Conditions Discharge to that of Honorable.
The FSM served on active service from December 15, 1999 to July 25, 2003 at which time she was discharged due to Misconduct.

The FSM contends the current discharge is improper because she was an outstanding sailor, that gave everything she attempted her full effort. That problems never occurred until she received a NAS harassing fax, and the poor health of her family member. These factors influenced her to go astray of Navy Standards, which lead to the resulting discharge.
This creates a need for a review of the application of the standard, for the Board to determine that the Applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 (c), Par. (f) (1).
As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.
We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the Applicant.
Respectfully,”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Character reference, undated
 Copies of Applicant’s service record (2 pages)
 Article from Navy Public Affairs Center, undated (3 pages)
Applicant’s DD Form 214
 Appointment of Veterans Service Organization as claimant’s representative, dated March 25, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     Not found in service record
          Active: None
Period of Service Under Review :
Date of Enlistment: 991215               Date of Discharge: 030725

 Length of Service (years, months, days):

         Active: 03 07 11
         Inactive: None

 Age at Entry: 28                          Years Contracted: 4 (21 months extension)
Education Level: 12                        AFQT: 54

 Highest Rate: DN
Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 2.75 (4)    Behavior: 2.75 (4)                OTA: 2.83

 Military Decorations: None
Unit/Campaign/Service Awards: AFEM, SSDR, NDSM

 Days of Unauthorized Absence: 2
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 :

020408:  Violation of Articles 86 and 92 resolved at CPO Disciplinary Review Board.
021024:  NJP for violation of UCMJ, Article 86 (2 specs): (1) Fail to go at the time prescribed to her appointed place of duty on 0600, 020607, to wit: Branch Dental Clinic, (2) Fail to go at the time prescribed to her appointed place of duty on 1300, 020715, to wit: Naval Legal Services Office, violation of UCMJ, Article 90: Willfully disobey a lawful order on 020729, to wit: not engage in off-duty remunerative employment, violation of UCMJ, Article 92: Fail to obey lawful order by engaging in off-duty remunerative employment on 020618, violation of UCMJ, Article 107: False official statement on 020618, to wit: the power company had been at her apartment and caused the power outage on 020607 which made her late for duty and presented a purported copy of a hang tag, violation of UCMJ, Article 134 (2 specs): (1) Make and utter to Navy Exchange Autoport a certain check in the amount of $1,061.04 for the purpose of car repair and did thereafter dishonorably fail to maintain sufficient funds in the bank for payment, (2) Wrongful previous overindulgence in intoxicating liquor or drugs was incapacitated for the proper performance of duties on 021018.
          Award: Forfeiture of $250 per month for 2 months, restriction for 60 days, reduction to E-2. Forfeiture suspended for 6 months. No indication of appeal in the record.
030206:  NJP for violation of UCMJ, Article 86: Absent from unit on 0701, 030131 to 0700, 030203 (2 days), to wit: Branch Dental Clinic.
         Award: Restriction for 45 days and extra duty for 15 days. Appealed 030212.
030211:  Vacate suspended forfeiture awarded at CO’s NJP dated 021024 due to continued misconduct.
030211:  Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.
030211:  Applicant advised of rights and having consulted 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 and to submit a statement.
030305:  NJP for violation of UCMJ, Article 134: Break restriction on 030301, violation of UCMJ, Article 86: Fail to go at the time prescribed to appointed place of duty on 020320, violation of UCMJ, Article 92 (2 specs): (1) Willfully disobey a direct order from DTC on 020320, to wit: check in at the Naval School of Dental Assisting by telephone upon arrival and physically check in on 020321, (2) Derelict in the performance of duties on 020320, to wit: willfully failed to report.
         Award: None stated in record.
030307:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
030307:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
030415:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

030714:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense .
030715:  Commander, Navy Region Southeast 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 20030725 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: 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 (NJP) on three occasions for violations of Articles 86, 90, 92, 107, and 134 of the UCMJ. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. Relief denied.

 Issue 2: The Applicant’s discharge characterization accurately reflects her service to her country. Normally, to permit relief, an procedural 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. Relief denied.

The following is provided for the edification of the Applicant. 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 naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. The Applicant’s evidence of post-service conduct was found not to mitigate her misconduct sufficient to warrant an upgrade to her discharge. Therefore, no relief will be granted.

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 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), 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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