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NAVY | DRB | 2004_Navy | ND04-01328
Original file (ND04-01328.rtf) Auto-classification: Denied


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

ex-DR, USN
Docket No. ND04-01328

Applicant’s Request
The application for discharge review was received on 20040824. 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 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: UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “ To: Naval Council of Personnel Boards

Reference: Review for discharge upgrade

         I, M___ F__ C___, respectfully request my discharge of “other than honorable conditions” issued in May of 2002, be upgraded to a “General/under honorable conditions”.

         During my enlistment, I was primarily a well behaved sailor with no incidents of misconduct, therefore receiving a good conduct award after my initial three year of service. I had encountered a number of misfortunes in my personal life such as financial instability, grief from the death of my first child M___, as well as living in an abusive relationship with my husband. Although I tried to press forward as a young sailor, my life began to spiral downward and I began to make poor decisions such as experimenting with marijuana during the fourth year in my enlistment which finally lead to my demise as a sailor.

         Now living as a civilian without the umbrella of the United States Navy I have been forced to make wiser decisions especially having the care of my second daughter, I___, to take into consideration. I have been working as a dental assistant for Dr. A___ E___-H___, D.D.S, since June of 2002. I was able to carry the trade learned in the United States Navy as a dental assistant, and become a civilian the Navy can be proud to acknowledge as I begin to pursue a career in dental hygiene.”


 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Character Reference Letter dated August 9, 2004
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     971223 - 980519  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 980520               Date of Discharge: 020524

 Length of Service (years, months, days):

         Active: 04 00 05
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (20 months extension)

 Education Level: 12                        AFQT: 52

 Highest Rate: DN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.80 (5)    Behavior: 2.20 (5)                OTA: 2.73

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM, NDSM, LOC

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

 Chronological Listing of Significant Service Events :

001205:  Retention Warning: Advised of deficiency (The U.S. Marine Provost Marshall’s Office (PMO) Domestic Violence Unit (DVU) of MCAGCC, California cited you with subsequent cases of domestic disturbance since the first incident of 000227), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

011213:  NJP for violation of UCMJ, Article 128: Did at MAGTFTC 29 Palms, CA on or about 011125 assault SGT G___, who then was and was then known by the accused to be a person then having and in the execution of military police law enforcement duties, by punching him in the back of his head; violation of UCMJ, Article 134: Did at MAGTFTC 29 Palms, CA on or about 011125, disorderly conduct was of a nature to bring discredit upon the Armed Forces.
         Award: Forfeiture of $584.00 pay per month for 1 month, reduction to E-2. No indication of appeal in the record.
011217:  Retention Warning: Advised of deficiency [You were found guilty at commanding officer’s non-judicial punishment on 011213 for violation of the UCMJ, Article 128 (assault a military police officer who was in the execution of law enforcement duties on 011125) and Article 134 (disorder conduct)], notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020503:  NJP for violation of UCMJ, Article 112a: Wrongfully use a controlled substance (THC).
         Award: Forfeiture of $552.00 pay per month for 2 months, extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
020507:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to drug abuse.
020507:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
02050X:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to drug abuse. [Complete date unreadable.]

020513:  Commander, Naval Training Center, Great Lakes authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020524 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).

Issue 1. 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. The Applicant’s service was marred by nonjudicial punishment proceedings for violations of Articles 112a, 128 and 134 of the UCMJ. 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. Relief is not warranted.

The Applicant contends that her problems in the Navy can be attributed to her personal misfortunes. While she may feel that her personal problems were the underlying cause of her misconduct, the record clearly reflects her willful misconduct and demonstrated she was unfit for further service. 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 denied.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient 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. 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 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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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