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NAVY | DRB | 2004_Navy | ND04-01315
Original file (ND04-01315.rtf) Auto-classification: Denied


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


ex-YNSA, USN
Docket No. ND04-01315

Applicant’s Request
The application for discharge review was received on 20040819. 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 to “Medical.” 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 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 and reason for discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).





PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as stated

 Applicant’s issues, as stated on the application:

1. “Reasons for the change in discharge is before I went to TPU, I was getting out on a medical discharge. I received some injuries in the military which I still have trouble with today such as major headaches and head injuries. I’m applying for a job with the Youth Development Center which I can’t receive with a OTH. I doesn’t think I should have received this discharge because I was getting out on medical. I feel I was given this discharge because my command wanted me to do another 6 months deployment but I refused because of my medical reasons. That’s the only reason I went UA. I never meant to harm or do anything wrong to anyone just was looking out for my health. Please look into my medical records and considered what I’ve written. 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)     000720 - 000727  COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 000728               Date of Discharge: 020225

Length of Service (years, months, days):

          Active: 01 01 04         (Does not include lost time)
          Inactive: None
Age at Entry: 19                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 35
Highest Rate: YNSN

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: NOB                           Behavior: 3.00 (1)                OTA: 3.00

 Military Decorations: NDSM
Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 151
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).
Chronological Listing of Significant Service Events :

010628:  Psychiatric Evaluation: Diagnosis: AXIS I: Adjustment disorder with anxiety. Evaluating psychiatrist recommends administrative separation for unsuitability.
010711:  Report of Medical Examination: Applicant found qualified for separation.
010806:  Applicant to unauthorized absence 0730, 010806.

 010924:  Applicant from unauthorized absence 0830, 010924 (50 days/surrendered).
011009:  Applicant to unauthorized absence 0730, 011009.
011116:  Applicant from unauthorized absence 011116 (38 days).

011116:  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.
011116:  Applicant advised of rights and having consulted with counsel certified under UCMJ, Article 27(b), elected to appear before an Administrative Discharge Board.
011206:  Applicant modified selection of rights. 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 obtain copies of the documents used to support the basis for the separation.
011218:  NJP for violation of UCMJ, Article 85: Desertion with intent to avoid hazardous duty or shirk important service on 010806, violation of UCMJ Article 134: Conduct prejudicial to good order and discipline.
         Award: Forfeiture of $595.95 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
011218:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
011225:  Applicant to unauthorized absence 1500, 011225 .

 020219:  COMCRUDESGRU TWELVE directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
020225:  Applicant discharged in absentia.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged, in absentia , on 20020225 under other than honorable conditions for misconduct due to commission of a serious offense (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: Normally, to permit relief, a error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident during the Applicant’s enlistment. Relief not warranted.

A service member’s misconduct takes precedence over a medical diagnosis leading to an administrative discharge. 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 one occasion for violation of Articles 85 and 134 of the UCMJ. These violations of the UCMJ are considered serious offenses. 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 honorable characterization of service. Relief denied.

 The summary of service clearly documents that misconduct, was the reason the Applicant was discharged. No other Narrative Reason for Separation more clearly describes why the applicant was discharged. To change the Narrative Reason for Separation would be inappropriate. Relief based on this issue is not warranted.

Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment 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), Change 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B. 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.

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