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NAVY | DRB | 2004_Navy | ND04-01336
Original file (ND04-01336.rtf) Auto-classification: Denied


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


ex-AR, USN
Docket No. ND04-01336

Applicant’s Request
The application for discharge review was received on 20040823. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant did not list any representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation by the Disabled American Veterans.

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: GENERAL (UNDER 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. “I joined back in the military (Army National Guard) (I love being in the ARNG!!). I’m trying to advance and be successful in my life/military. I just joined the military police unit. This upgrade will help me to advance in my life as well in the military.”

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

 2. “Dear Chairperson:
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 his request for a discharge upgrade of his current General Under Honorable Conditions to that of Honorable.
The FSM served on active service from January 5, 1998 to June 8, 1998 at which time he was discharged due to Misconduct.

The FSM, based on submittal of the application, request a records review for an upgrade of the current General discharge, making no specific complaints of improprieties, nor requests of equitable relief, only noting the Department of Veterans Affairs states the discharge was honorable as the reason for the application.

As the representative, we ask that consideration be given to equitable relief, 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 5420.174C.
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:
Copy of Army National Guard Enlistment/Reenlistment Contract (2 pages)
Copy of Transfer Acceptance Documents (2 pages)
 Copy of Orders
Copy of Report of Medical History (3 pages)
Copy of Report of Medical Examination (4 pages)
Copy of Dental Examination

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     971231 - 980104  COG
          Active: USN                        None
Period of Service Under Review :
Date of Enlistment: 980105               Date of Discharge: 980608

 Length of Service (years, months, days):
         Active: 00 05 04
          Inactive: None
Age at Entry: 19                          Years Contracted: 4

Education Level: 10                        AFQT: 42
Highest Rate: AR

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: NMA*        Behavior: NMA             OTA: NMA

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

 Days of Unauthorized Absence: None
*No marks obtained
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

980518:  Psychiatric Evaluation: AR J_ had his initial psychiatric evaluation and it was determined that he manifested a long-standing disorder of character and behavior though an expeditious administrative separation was not recommended. He was given a page 13. AR J_ was subsequently reevaluated and recommended for expeditious administrative separation.
980601:  Retention Warning: Advised of deficiency (You have been diagnosed by competent medical authority as having a personality disorder causing your inability to withstand military conditions and to provide productive military service), notified of further assistance, advised of consequences of further deficiencies, and issued discharge warning.
        
980608:  NJP for violation of UCMJ, Article 134 (2 Specs): Communicating a threat.
         Award: Forfeiture of $463.00 pay per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
980608:  Applicant notified of intended recommendation for discharge with a least favorable characterization of general (under honorable conditions) by reason of personality disorder and misconduct due to the commission of a serious offense.
980608:  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.
980608:  Commanding Officer directed discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense and a personality disorder.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980608 with a general (under 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: The Board has no authority to upgrade a discharge for the sole purpose of enhancing promotion opportunities within the Army National Guard. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

Issue 2: 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 characterization of service of under honorable conditions (general) 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 award of nonjudicial punishment (NJP) for violation of UCMJ, Article 134, Communicating a threat, and a retention warning on another occasion. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful 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. An upgrade to honorable is inappropriate. Relief denied.
The Applicant was diagnosed with a personality disorder by a competent medical authority. The Applicant was dual processed by reason of misconduct due to the commission of a serious offense and a personality disorder. Misconduct takes precedence over a medical diagnosis.
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), Change 18, effective
12 Dec 97 until 29 March 2000, 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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