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NAVY | DRB | 2004_Navy | ND04-00638
Original file (ND04-00638.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND04-00638

Applicant’s Request
The application for discharge review was received on 20040309. 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 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 20041008. 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/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. “According to a psychologist I was required to see for counseling sessions, I was reported to have a borderline personality disorder related to this. I had many crying spells for no reason, and when asked what was wrong, I couldn’t pinpoint the source of sadness. Because of this and not being discharged after talking to high-ranking officers such as the Chaplain, Master Chief, Captain, and other officers, I felt trapped and very unhappy which led to me going AWOL and UA. I believe that my discharge should be upgraded to a General or Medical discharge based on my medical records from the psychologist and Mental Health Nurse.”
Documentation
In addition to the service record, NO BUPERS or CNMPC message available, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Copy of DD Form 215
Copy of Evaluation Report & Counseling Record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     990517 - 990615  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 990616               Date of Discharge: 010425

 Length of Service (years, months, days):

         Active: 01 10 08
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 80

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA*                 Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 79

* No Marks made available for review

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

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

 Chronological Listing of Significant Service Events :

000223:  Retention Warning: Advised of deficiency (Article 86-Unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

000223:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
Award: Forfeiture of $563.00 pay per month for 2 months, restriction and extra duty for 30 days. No indication of appeal in the record.
000606:  NJP for violation of UCMJ, Article 86: Unauthorized absence; violation of UCMJ, Article 87: Missing movement.
Award: Forfeiture of ½ month pay per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days. No indication of appeal in the record.
010111:  UA from USS GETTYSBURG (CG-64).

010322:  Returned from UA (70days).

010330:  NJP for violation of UCMJ, Article 86: Unauthorized absence; violation of UCMJ, Article 87: Missing movement.
Award: Reduction to E-2. No indication of appeal in the record.
010412:  NJP for violation of UCMJ, Article 86: Did on or about 010402, without authority, absent herself from her organization, to wit: TPU NAS, Jacksonville, Florida, and did remain so absent until on or about 010411(9days).
Award: Forfeiture of ½ month pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
010412:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.
010412:  Applicant advised of rights and having elected not to consult 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

010412:  Commanding Officer recommended discharge under other than 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 20010425 under other than 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: 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 four occasions for violations of Articles 86 and 87 of the UCMJ. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an general (under honorable conditions) characterization of service. For the Applicant’s edification, a dministrative separation for misconduct takes precedence over separation for any other potential reason, including separation by reason of physical disability. Relief denied.
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 his 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. The Applicant can provide additional documentation to support any claims of post-service accomplishments or any other evidence relating to her 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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