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NAVY | DRB | 2004_Navy | ND04-01082
Original file (ND04-01082.rtf) Auto-classification: Denied


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

ex-DT2, USN
Docket No. ND04-01082

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 and the reason for the discharge be changed. The Applicant requests a personal appearance hearing. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing. The Applicant listed Disabled American Veterans as representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050304. 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 and reason for discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 1910-106 (formerly 3630650).


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “My Undesirable Discharge was inequitable because it was based on one supposed incident in 18 years of Honorable Service with no other adverse actions.”

2. “Discharged was based on lies of Senior Personnel and believed only because of their positions.”

3. “My dependent was left without proper medical attention and counseling leaving him with more serious issues and complications.”

4. “Discharge has caused my conditions to be left untreated and worsen.”

Additional issues submitted by Applicant’s counsel/representative (DISABLED AMERICAN VETERANS):

 5. “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 Under Other Than Honorable Conditions discharge to Honorable, to include a change of the narrative reason for separation.

The FSM served on active service from February 13, 1990 to June 12, 2003 at which time she was discharged In Lieu of Trial by Court Martial.

The FSM requests consideration be given to equitable relief, as she maintains it is based on one incident out of eighteen years of Honorable service due to discrimination by her Senior Personnel because of her disability. The FSM goes into great detail regarding the events of her last period of service and it is the impression of this service that if any part of this story has merit the Command at that time should be Administratively Separated for conduct un-becoming, but at the very least the FSM’s character of service should be changed to Honorable.

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 5420.174D.

Additionally, it should be known to the Board that the records concerning FSM discharge have been reviewed in full by the Department of Veterans Affairs and her service has been determined to be HONORABLE, and entitlement to full benefits established.
This reflects that on review by separate Agencies of the Government, that the discharge results of this case cannot be upheld.

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.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
VA ltr dtd 040430 (2 pages) (2 copies)
VA claim documentation (13 pages)
Request for SILT dtd 030517 (9 pages)
Chronology of events, typed (8 pages) (2 copies)
Chronology of events, written (7 pages) (2 copies)
Ltr from R_ A_ dtd 030826 (2 pages) (2 copies)
Ltr from G_ C_ dtd 030901 (2 copies)
Ltr from Mr. and Mrs. U_ J_ dtd 030701 (2 pages) (2 copies)
Newspaper article dtd 030618 (2 copies)
Ltr from EM2 (SW) V_ D_ dtd 030712
Email from D_ W_ dtd 030622 (3 pages) (2 copies)
Ltr from Mrs. T_ dtd 030530 (2 pages) (2 copies)
Ltr from G_ K_ - Ed. D dtd 030706 (2 pages) (2 copies)
Ltr from Rev. L_ K. H_ dtd 030709, unsigned (2 copies)
Ltr from V_ A_ dtd 030712 (2 copies)
Copy of note to CDR D_ dtd 030603
Bed rest chit dtd 030826
Light duty chit, undated
Request for copies dtd 030517
Request for pretrial confinement dtd 030218
Light duty chit dtd 030218
Medical documentation (1 page)
VA ltr dtd 040809 (3 pages)
Special requests dtd 030207
350 pages from Applicant’s medical record



PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
Inactive: USNR            840924 – 900404  HON
Active: USNR (DEP)       900404 – 900521  To Enlist USN
Active: USN               900522 – 941205  HON
        USN              941206 – 980122  HON
USN              980123 – 000919  HON

Period of Service Under Review :
Date of Enlistment: 000920               Date of Discharge: 030612

 Length of Service (years, months, days):

         Active: 02 08 23
         Inactive: None

 Age at Entry: 43                          Years Contracted: 4

 Education Level: 13                        AFQT: 76

 Highest Rate: DT2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (5)             Behavior: 3.20 (5)                OTA: 3.26

 Military Decorations: None

 Unit/Campaign/Service Awards: NER (2), GCM (3), NRMM, NDSM (2), AFEM, SSDR, NMCOR, ESW

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

 Chronological Listing of Significant Service Events :

000920:  Applicant reenlisted for 4 years.

030204:  Applicant missed movement.

030228:  Medical Diagnosis:
         AXIS I: Adjustment disorder w/ depressed mood
         AXIS II: Deferred
         AXIS III: Lower back pain
         AXIS IV: Stress of deployment; legal problems
         AXIS V: GAF 51-60
030304:  Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 87: Missing movement by design.

 030424:  Medical Diagnosis: Adjustment disorder DM
 Plan:    1- fit for full duty
         2- f/u on Tuesday 030430 at 0800
030517:  Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial. She consulted with counsel and was fully advised of the implications of her request. The Applicant stated she understood the elements of the offense with which she was charged, and admitted she was guilty of the charge preferred against her. Specifically, she admitted to violating UCMJ, Article 87, missing movement on 030204. The Applicant stated she was completely satisfied with the counsel she had received. The Applicant understood that if discharged under other than honorable conditions, it might deprive her of virtually all veterans' benefits based upon her current enlistment, and that she might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.

030520:  SJA review determined the case sufficient in law and fact .
030520:  The CG, 1 st FSSG exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030612 under other than honorable conditions in lieu of a trial by court-martial (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. The Applicant states her discharge is inequitable because it was based “on one supposed incident in 18 years.” Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. In a signed statement, the Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial. She consulted with counsel and was fully advised of the implications of her request. The Applicant understood that if discharged under other than honorable conditions, it might deprive her of virtually all veterans' benefits based upon her current enlistment, and that she might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing. The Applicant stated she understood the elements of the offenses with which she was charged. She admitted she was guilty of violating Article 87, missing movement, on 20030204. Relief denied.

Issue 2. The Applicant states that her discharge was “based on lies of Senior Personnel.” The record, however, contains no evidence of any wrongdoing by the Applicant’s Commanding Officer or anyone else involved in the discharge process. The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. As such, this Board presumed that Applicant’s discharge was regular in all respects. Relief denied.

Issues 3. The Applicant states that her dependent was left without proper medical care as a result of her discharge. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider her discharge proper and equitable. The evidence of record did not show that the Applicant was either not responsible for her conduct or that she should not be held accountable for her actions. Relief is not warranted.

Issue 4. The Applicant states that her discharge caused her “conditions to be left untreated and worsen.” Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider her discharge proper and equitable. Relief is not warranted.

Issue 5. The Applicant’s counsel contends that the Veterans Administration has characterized the Applicants service as honorable and as such, that “the discharge results of this case cannot be upheld.” The VA is responsible for determining eligibility for post-service benefits. In determining eligibility, the Veterans Administration is not typically bound by the Navy’s characterization of service and, as in the Applicant’s case, may make a different determination as to characterization of service for the purposes of post-service benefits. Likewise, determinations made by the Veterans Administration concerning a servicemember’s characterization of service are not binding upon this Board or the Department of the Navy. Relief is not warranted.

 An Under Other Than Honorable Conditions 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 a violation of Article 87, missing movement, of the UCMJ. Violations of Article 87 are considered serious offenses. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy and falls far short of that required for an upgrade of her characterization of service. Additionally, the summary of service clearly documents that the separation in lieu of trial was the reason the Applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. 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 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. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that her discharge was appropriate and that her evidence of post-service conduct was found not to mitigate the conduct for which she was discharged. 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. 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 2002 until Present, Article 1910-106 (formerly 3630650), SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B. A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article 87, missing movement by design, upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-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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