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NAVY | DRB | 2004_Navy | ND04-01301
Original file (ND04-01301.rtf) Auto-classification: Denied


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

ex-SN, USN
Docket No. ND04-01301

Applicant’s Request
The application for discharge review was received on 20040818. The Applicant requests the characterization of service received at the time of discharge be changed to general (under honorable conditions). The Applicant requests a personal appearance hearing review before the Board in the Washington D.C. Metropolitan Area. The Applicant did not list any representative on the DD Form 293. 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.

 Decision

A documentary review was conducted in Washington, D.C. on 20050214. 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 was approved to receive a medical discharge because I hurt myself when I was in the Navy that was in 1990. Now its 2004 and I’m still having problems with my leg injuries. (Plural because I hurt both). Also I did not deserve an administration discharge because in May of 1992 I received good eave's and was recommended to be promoted. Then I got approved for the medical discharge and everything changed in July. I agreed to the admin discharge because I was told that I would still be able to receive medical and cash benefits. That was a lie. I’m still having the same pain now (except that it comes w/swelling now) that I had back in 1990. The pain is there everyday it never goes away.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant
Medical Record (7 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     880322 - 880424  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 880425               Date of Discharge: 920709

 Length of Service (years, months, days):

         Active: 03 07 10
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 46

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.10 (4)             Behavior: 3.05 (4)                OTA: 3.25

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 121

 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 :

880811:  NJP for violation of UCMJ, Article 86: UA from 1500, 880727 to 0830, 880728.
         Award: Forfeiture of $100.00 pay per month for 1 month, restriction and extra duty for 3 days. No indication of appeal in the record.

881207:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 881106 having been an unauthorized absentee since 0001, 881007 from NAVSTA LONG BEACH CA.

890227:  Report of Return of Deserter. Applicant apprehended by civil authorities on 890227 (1135) at Brooklyn, NY. Returned to military control 890227 (1215). Orig retains custody pending transfer to parent command FORDU.

890301:  Applicant to pretrial confinement.

890328:  Applicant released from pretrial confinement.

890328:  Special Court Martial
         Charge: violation of the UCMJ, Article 86: On or about 881007, without authority absent herself from her unit until on or about 890222(118days/A).
         Findings: to the Charge and specification thereunder, guilty.
         Sentence: Confinement for 3 months, forfeiture of $466.00 pay for 3 months.
         CA 890501: So much of the sentence extending to three months of confinement is changed to two months of confinement and one month of restriction. The sentence as changed is approved and will be executed.

890328:  Applicant to confinement.

890516:  Applicant released from confinement and restored to full duty.

890912:  Retention warning issued. [Extracted from CO’s letter.]

900531:  NJP for violation of UCMJ, Article 107: False official statement, violation of UCMJ, Article 132: (2 Specification), Fraud against the government, violation of UCMJ, Article 121: Wrongful appropriation.
Award: Not found in service record. No indication appeal in the record.
[Extracted from CO’s letter.]
910227:  NJP for violation of UCMJ, Article 86: UA 0700-0710, 910205.
Award: Not found in service record. No indication of appeal in the record.
[Extracted from CO’s letter.]
910503:  NJP for violation of UCMJ, Article 86: UA 0700-0720, 910426.
Award: Not found in service record. No indication of appeal in the record.
[Extracted from CO’s letter.]
910717:  NJP for violation of UCMJ, Article 86 (2 Specifications): Specification 1: UA 0700 910707 to 0700, 910708 (1day); Specification 2: UA 0800 910709 to 0700, 910710 (1day).
Award: Not found in service record. No indication of appeal in the record.
[Extracted from CO’s letter.]
910827:  NJP for violation of UCMJ, Article 107: Making false official statement.
Award: Not found in service record. No indication of appeal in the record.
[Extracted from CO’s letter.]
920609:  Fleet Training Group, San Diego, CA notified Applicant of intended recommendation for discharge by reason of misconduct due to the commission of a serious military offense and misconduct due to a pattern of misconduct due to 3 or more punishments under the UCMJ within the current enlistment. Applicant notified that if discharge is approved, the least favorable characterization of service possible is under other than honorable conditions.
920612:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to a minimum of 2 working days to respond to the Notice of Administrative Board Procedure Proposed Action.
920616:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct commission of a serious military offense and a pattern of misconduct.

920626:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

Complete discharge package unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920709 under other than honorable conditions for misconduct due to a pattern of misconduct (A). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

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. 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. T he Applicant’s service was marred by unauthorized absences totaling 121 days, false official statements, frauds against the government, and wrongful appropriation. This misconduct resulted in six separate nonjudicial punishment proceedings for violations of UCMJ Articles 86, 107, 121, and 132, and one special court-martial conviction for a violation of UCMJ Article 86. 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. Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of her characterization of service. Relief is not warranted.

 For the Applicant’s edification, disciplinary separations normally supersede disability separations or retirements. Whenever a member is being processed through the PEB, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The PEB case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.

The Veterans Administration determines eligibility for post-service benefits not the Naval 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the 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. 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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

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

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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