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NAVY | DRB | 2004_Navy | ND04-01079
Original file (ND04-01079.rtf) Auto-classification: Denied


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


ex-EMFN, USN
Docket No. ND04-01079

Applicant’s Request
The application for discharge review was received on 20040622. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20041222. 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)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as stated
1. “Hello and Thank you for taking the time to review my request. It has been ten years since my discharge from the Navy. In these years I have matured greatly. I have received an education, married, had a child and have become a devout follower of our Lord Jesus Christ. I am not the same man I use to be. Even though I didn’t receive a bad discharge, it has always bothered me. All I can ask at this point in my life is to ask forgiveness for my past. Please upgrade my discharge to “Honorable” and if you can send me a new DD-214 showing this I would appreciate it. Thank you.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     920309 - 930120  COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 930121               Date of Discharge: 940603

 Length of Service (years, months, days):
         Active: 01 04 13
          Inactive: None
Age at Entry: 21                          Years Contracted: 4 (22 months extension)
Education Level: 12                        AFQT: 93

 Highest Rate: EM3
Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (2)    Behavior: 3.10 (2)                OTA: 3.00
Military Decorations: None

 Unit/Campaign/Service Awards: NDSM
Days of Unauthorized Absence: None

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

GENERAL(UNDER HONORABLE CONDITIONS) /MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

940224:  NJP for violation of UCMJ, Article 86 (2 Specs):
Specification 1: On or about 0700, 940208, with out authority, fail to go at the time prescribed and did remain so absent until 0723, 940208.
Specification 2: On or about 0720, 940209, without authority absent himself from NNPTC, Orlando and did remain so absent until 0925, 940209. Violation of UCMJ Article 91: On or about 940207, willfully failed to obey a lawful order by not returning the barracks inspection report to a CPO, violation Article 107: On or about 940209, with intent to deceive, make to a CPO a false official statement, to wit: “ I went to sick call,” which statement was false.
         Award: Reduction in rate to E-3, correctional custody for 30 days.
940228:  Mental Health Department, Naval Hospital, Orlando Florida: This is the case of a 22 year old, white single male FN/AD who was admitted on 24Feb 94 after he voiced suicidal ideations after he went to Captain’s Mast, under charges that include UA. He was punished with 30 days of CCU. Prior to going to CCU, patient stated that he may hurt himself prior to going there, this prompted a visit to mental health clinic, where he maintained his position, then he was admitted to the psychiatric ward. On the psychiatric ward patient made evident his lack of motivation to continue in the military service. He also displays a lot of immature features and a low tolerance for frustration and inability to control his impulses. His suicidal thoughts resolved shortly after hospitalization. Patient denies drugs or alcohol abuse.
          Diagnosis: AXIS I: Occupational Problems, AXIS II: Personality Disorder NOS with Immature Features.
         Applicant is not considered mentally ill. ….. Although not imminently suicidal or homicidal at this time, Applicant represents a potential danger to self and others if retain in the military service.
         Applicant is competent and responsible for his behavior. He does not present any psychiatric contraindication to any appropriate administrative or disciplinary action.
940420:  Applicant notified of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by all punishments under the UCMJ in your current enlistment and Personality Disorder.
940420:  Applicant advised of his 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. Applicant objected to separation.
940505:  Commanding Officer recommended discharge with a General by reason of misconduct due to the commission of a serious offense and convenience of the government on the basis of personality disorder. Commanding Officer’s comments (verbatim): …… EMFN F_ (Applicant) has been under psychiatric care since 24 February 1994. He was diagnosed as having an Occupational Problem and a Personality Disorder, Not Otherwise Specified, with Immature Features, which makes him unsuitable for military service. However, after careful consideration of his offense under UCMJ Articles of 86, 91 and 107, it is recommended that EMFN F_ (Applicant) be considered for a General Discharge.
940525:  BUPERS directed the Applicant's discharge with a general (under 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 19940302 with a general/under honorable conditions for misconduct due to commission of a serious offense (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).
Issue 1: Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question. No such impropriety or inequity is evident during the Applicant’s enlistment. 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 nonjudicial punishment proceedings for multiple violations of UCMJ Articles 86, failure to go to appointed place of duty and unauthorized absence, 91, willful disobedience to lawful orders, and 107, false official statement. 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.

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. As of this time, the Applicant has not provided any documentation for the Board to consider. Relief denied.

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 5, effective
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.
B. Under the Manual for Court-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 107, false official statement, if adjudged at a Special or General Court-Martial.

C. 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.

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .
E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .



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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