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NAVY | DRB | 2004_Navy | ND04-01081
Original file (ND04-01081.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND04-01081

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 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 20041103. 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 - Pattern of Misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “I would like to use my military experience in a good light. I also feel I earned it. So I’m now applying for a Discharge upgrade. I have recently been diagnosed with major depression with psychotic involvement. I’m currently applying for medical assistance. I was told many years ago I could apply for a upgrade. This is what I’m attempting to do now. I would appreciate a review of my discharge. I’m seeking a discharge of general under honorable conditions.

 To whom it may concern.
My name is B_ E_ G_-B_ (Applicant). I am a Gulf War Veteran (Desert Storm). I'm applying for a discharge upgrade. I was discharged out of the Navy back in Feb 1992. I currently have an (other than honorable discharge). I’m seeking either an honorable discharge or a general under honorable conditions.
I was so close to finishing my tour that I feel it was unfair to give me a bad discharge. I had three offenses which were isolated that got me this particular type of discharge. I have been a good citizen. My average conduct and efficiency ratings/behavior and proficiency marks were good or pretty good. I also realize that my youth and immaturity played a part with some of my conduct.
I’m thirty three now and I would like to use my military experience in a good light. I mainly would like to have access to the medical benefits.
I have been diagnosed with mood disorder with psychotic involvement. This has been going on for awhile, possibly during my military tour. I'm currently on medication for this, which according to my physicians. I must remain on for life. I’m also unemployed because of this diagnosis. My condition has hampered my ability to hold a job. I currently see a psychiatrist regularly for medication monitoring. I’m seeking medical assistance through the state of Maryland. I’m also on mental disability, which means I can’t work until I’m mentally balanced.
I say all of this because, having my medical benefits through the military would relieve the burden and stress of getting therapy and staying on my medication. It would make it easier on me while I'm unemployed.
I’m enclosing a copy of my discharge paper dd214, along with a letter from my psychiatrist describing my disorder.

Sincerely,

B_ E_ G_-B_ (Applicant)”





 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant’s psychiatrist, dated May 19, 2004
Applicant’s DD Form 214 (Member 1)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     880107 - 880909  ELS
                   USNR (DEP)      890711 - 890712  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 890713               Date of Discharge: 920206

 Length of Service (years, months, days):

         Active: 02 06 24
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 33/57

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.40 (2)    Behavior: 3.40 (2)                OTA: 3.40

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM, SSDR

 Days of Unauthorized Absence: 29

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

890718:  Applicant briefed on Navy's policy of drug and alcohol abuse.
900214:  Applicant to unauthorized absence 0500, 900214.

 900315:  Applicant from unauthorized absence 0402, 900315 (29 days/surrendered).
900316:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
         Award: Restriction and extra duty for 45 days, reduction to SA. No indication of appeal in the record.
901022:  Retention Warning from USS CHARLESTON (LKA 113): Advised of deficiency (Private indebtedness has resulted in numerous lost man hours, constant counseling, court dates and adverse professional development. SN B_ (Applicant) has been onboard for 1 year and is still not General DC qualified. Applicant shows no motivation or interest in either of these problems), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 910613:  NJP for violation of UCMJ, Article 80: Attempted larceny of personal property.
         Award: Forfeiture of $350 per month for 2 months, restriction for 60 days, reduction to E-1. No indication of appeal in the record.

910613:  Retention Warning from USS CHARLESTON (LKA 113): Advised of deficiency (Attempted larceny of personal property), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 910703:  NJP for violation of UCMJ, Article 92: Disobedience of a lawful order.
         Award: Forfeiture of $375 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
910712:  USS CHARLESTON (LKA 113) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct by your violation of the UCMJ, Article 92: Disobedience of a lawful order on 910625, Article 80: Attempted larceny of personal property on 910530-910531, Article 86: Unauthorized absence from 0500, 900214 until 0402, 900315, Article 92: Disobedience of a lawful order and misconduct due to drug abuse as evidenced by the incident in which you were discovered intentionally inhaling paint to obtain it’s intoxicating effects.
910715:  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 and submit a statement.

UNDATED:         Applicant’s statement.
910723:  Drug and Alcohol Abuse Report: Inhalants abuse, less than monthly, shipboard on 910625. DAPA recommended separation. Physician found Applicant not dependent and recommended separation. Commanding Officer recommended separation.

910723:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to a pattern of misconduct.

910729:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

910801:  USS CHARLESTON request discharge be held in abeyance until 920930. Applicant is an eyewitness in upcoming general court-martial case.

910801:  BUPERS granted permission to retain Applicant for limited period. In reference to USS CHARLETON message 910701 request clarify that 920930 is correct date.

910809:  USS CHARLESTON message replys date should read 910930 vice 920930.

911226:  BUPERS granted permission to retain Applicant on active duty until 920131.

920129:  NJP for violation of UCMJ, Article 112A (4 specs): (1 and 2) Wrongfully use lysergic acid diethylamide, (3) Wrongfully possess lysergic acid diethylamide, (4) Wrongfully purchase lysergic acid diethylamide.
         Award: Forfeiture of $380 per month for 2 months, restriction for 45 days. No indication of appeal in the record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920206 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).

Issue1. The Applicant should be aware that, with respect to nonservice-related administrative matters, i.e., VA benefits, educational and employment pursuits, 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.

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 80, 86, 92, and 112a of the UCMJ. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an under honorable (general) characterization of service. 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 his misconduct sufficient to warrant an upgrade to his 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 additional documentation to support any claims of post-service accomplishments or any other evidence relating 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, effective 15 Aug 91 until
04 Mar 93), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A 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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