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NAVY | DRB | 2005_Navy | ND0500004
Original file (ND0500004.rtf) Auto-classification: Denied


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

ex-OSSN, USN
Docket No. ND05-00004

Applicant’s Request
The application for discharge review was received on 20040922. 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 review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050107. 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, 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. “Before being discharged by hearing loss problem has’nt been resolved. In being upgraded to a higher discharged hopefully be rewarded with medical benefits since, I loss my hearing on board the ship USS Carl Vinson (CVN 70) stationed out of Bremerton, Washington. Also pertaining to this issue what cause me to go UA, was when the Master Chief on the Carl Vinson beach detachment. He said “Your dead father is a SOB” in abbreviations. That’s the whole reason why I did what had to do. I wouldn’t work for a supervisor like that, this man to totally disrepected me, I couldn’t but do the same back. That is why I am requesting an upgrade in my discharge.”

The Applicant indicated on his application that additional issued were attached for the Board’s consideration. None were found.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
SF 180, Request Pertaining to Military Records

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     990823 - 000608  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 000609               Date of Discharge: 040311

 Length of Service (years, months, days):

         Active: 03 09 03
         Inactive: None

 Age at Entry: 17 (Parental Consent)              Years Contracted: 4

 Education Level: 12                                 AFQT: 45

 Highest Rate: OS2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (2)             Behavior: 3.00 (2)                OTA: 3.10

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, GCM, NUC, NER, SSDR (2)

 Days of Unauthorized Absence: 84

 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 :

030825:  Applicant commenced a period of unauthorized absence this date.

031117:  Applicant surrendered from unauthorized absence this date.

 040106:  Special Court Martial:
         Charge: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence 030825 – 031117, [84 days/S.]
         Findings: to the Charge and sole Specification thereunder, guilty.
         Sentence: Confinement for 45 days, reduction to E-3.
         No indication of CA action, however per the pretrial agreement, all confinement in excess of 30 days will be suspended for a period of one year from the date of the CA’s action at which time, unless sooner vacated, the suspended confinement will be remitted without further action.
040121:  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.
040121:          Applicant advised of his 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.
040213:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

040301:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040311 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, 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 a special court-martial conviction for a violation of Article 86 of the UCMJ for an 84 day unauthorized absence. The Applicant’s contends that his misconduct was the result of disrespect for his deceased father at the hands of the master chief. Such contentions, even if true, amount to neither a legal justification nor a defense for the Applicant’s misconduct. 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. 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 his characterization of service. Relief is not warranted.
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), re-issued October 2002, effective 22 Aug 02 until Present, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B. In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 86, unauthorized absence for a period in excess of 30 days, if adjudged at a Special or General Court Martial.

 C. 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.

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

 E. 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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