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NAVY | DRB | 2004_Navy | ND04-01368
Original file (ND04-01368.rtf) Auto-classification: Denied


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


ex-SA, USN
Docket No. ND04-01368

Applicant’s Request
The application for discharge review was received on 20040902. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary 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)/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. “My discharge is improper because I would of like to have finished my military obligation not to use this as an excuse but at my time of separation my Grandmother was dying of cancer the lady that raised my ass a kid I went home and was received an (General) under honorable conditions wish I could of made a better choice under the circumstances I hade to see my Grandmother
Dear Sir or Mama I’m writing this letter in concern of my type of Discharge I have an General (under Honorable conditions) I’m respectfully asking to upgrade to An Honorable So I can Attend School. To Better Support my children have no excuses of my Separation other than at the time my Grandmother was on Her Death Bed and She Raised me I was U.A. prior to Separation misconduct”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     940630 - 940920  COG
          Active:                            None
Period of Service Under Review :
Date of Enlistment: 940921               Date of Discharge: 970804

 Length of Service (years, months, days):
         Active: 02 10 06
         Inactive: None
Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 57
Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 3.00 (4)    Behavior: 1.75 (4)                OTA: 2.62

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

 Days of Unauthorized Absence: 7
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

950925:  Retention Warning: Advised of deficiency (Defective enlistment and induction due to fraudulent entry as evidenced by Applicant’s failure to disclose preservice arrest and conviction for assault and sexual misconduct), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

960818:  Applicant commenced a period of unauthorized absence.

 960820:  Applicant surrendered from unauthorized absence.
961212:  NJP for violation of UCMJ, Article 86 (5 Specs): Unauthorized absence from 960818 - 960820, unauthorized absence from appointed place of duty (961005, 961014, 961016, 961017).
         Award: Restriction for 20 days (10 days suspended for 6 months), reduction to E-2 (suspended for 6 months). No indication of appeal in the record.

 961212:  Retention Warning: Advised of deficiency (UA from unit and UA from muster), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

970401:  Applicant apprehended by civilian authorities, warrants for arrest.
970402:  Applicant commenced a period of unauthorized absence.

 970407:  Applicant tried and found guilty in Snohomish County, sentenced to 7 days in jail, returned to military jurisdiction this date.
970507:  Applicant commenced a period of unauthorized absence.
970508:  Applicant surrendered from unauthorized absence.

 970517:  NJP for violation of UCMJ, Article 86 (2 Specs): Unauthorized absence from 970402 - 970407, unauthorized absence from appointed place of duty.
         Award: Forfeiture of $400.00 pay per month for 1 month, restriction and extra duty for 15 days, reduction to E-2. No indication of appeal in the record.
970722:  NJP for violation of UCMJ, Article 86: Unauthorized absence from appointed place of duty, violation of UCMJ, Article 92: Dereliction of duty.
Award: Confinement for 3 days on bread and water.
970628:  Applicant notified of intended recommendation for discharge with a least favorable characterization of general (under honorable conditions) by reason of misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ in the Applicant’s current enlistment.
970628:  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.
970820:  Commanding Officer directed the Applicant's discharge with a general (under 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 19970804 with a general (under 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: 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. The Applicant contends his disciplinary problems were the result of stress caused by his dying grandmother. The NDRB recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that many members of the Navy serve while enduring similar hardships to those of the Applicant. The vast majority of these sailors are still able to serve honorably despite those hardships and therefore earn their honorable discharges. In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The Applicant’s service was marred by three NJP proceedings for multiple violations of unauthorized absence and dereliction of duty. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy. While the NDRB is sympathetic to the Applicant’s situation, the Applicant's service was equitably characterized. Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Navy 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, Change 14, effective 03 Oct 96 until 11 Dec 97), 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 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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