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NAVY | DRB | 2005_Navy | ND0500043
Original file (ND0500043.rtf) Auto-classification: Denied


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

ex-FR, USNR
Docket No. ND05-00043

Applicant’s Request
The application for discharge review was received on 20041004. 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 discharge review was conducted in Washington, D.C. on 20041229. 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 - 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. “So that I can get a better education In the field that I chose. Also to receive other VA benefits. Due to illness it has become harder to find help with schooling.”
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: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 900821               Date of Discharge: 930420

 Length of Service (years, months, days):

         Active: 02 03 17 (Does not exclude lost time)
         Inactive: 00 04 14

 Age at Entry: 18                          Years Contracted: 8

 Education Level: 12                        AFQT: 32

 Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (1)             Behavior: 3.80 (1)                OTA: 3.60

 Military Decorations: None

 Unit/Campaign/Service Awards: JMUA, NDSM, SASM (w/*), SSDR

 Days of Unauthorized Absence: Cannot be determined from available records (29 minimum)

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

910104:  Ordered to active duty to commence recruit training.

 920507:  NJP for violation of UCMJ, Article 86: UA from place of duty on 920424, violation of UCMJ, Article 91: Disobeyed lawful order from superior petty officer on 920502.
         Award: Forfeiture of $200 per month for 2 months ($100 per month for 2 months suspended for 6 months), restriction and extra duty for 20 days. No indication of appeal in the record.

920508:  Retention Warning from USS PELELIU (LHA-5). Advised of deficiency (NJP), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920730:  NJP for violation of UCMJ, Article 86: UA; violation of UCMJ, Article 128: Assaulted his wife.
         Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2 (forfeiture, restriction/extra duties for 35 days and reduction suspended for 6 months). No indication of appeal in the record.
921215:          To UA at 0715.

921221:  Surrendered from UA at 2200.

921222:  Vacated suspended punishment from NJP of 920730.

930113:  Summary Court-Martial.
                  Charge I. Violation of UCMJ, Article 86 (5 specs).
                  Specification 1: UA from 920922-920923.
                  Specification 2: UA from 921009-921013.
                  Specification 3: UA from 921026-921030.
                  Specification 4: UA from 921031-921105.
                  Specification 5: UA from 921231-930104.
                  Charge II. Violation of UCMJ, Article 95.
                  Specification: Resist apprehension on 921030.            
Charge III. Violation of UCMJ, Article 134 (2 specs).
                   Specification 1: Break restriction on 921031.
                  Specification 2: Break restriction on 921231.
                  Finding: Guilty to all charges and specifications.
                   Sentence: Forfeiture of $407.00, restriction for 45 days, reduction to E-1.
                  CA action: 930115. Approved and ordered executed.

 930120:  USS PELELIU (LHA-5) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and due to the commission of a serious offense as evidenced by entries in his service record.
930208:  NJP for violation of UCMJ, Article 86: UA from place of duty, violation of UCMJ, Article 92: Disobeyed lawful order.
         Award: 3 days bread and water. No indication of appeal in the record.
930216:  Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to a pattern of misconduct and due to the commission of a serious offense.
930312:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
930409:  BUPERS directed 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 in absentia on 19930420 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. 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. T he Applicant’s service was marred by award of nonjudicial punishment (NJP) on three occasions, vacation of suspended punishment from one NJP and one summary court-martial for unauthorized absences, disobedience of orders, assault and breaking restriction. 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 or under honorable (general) characterization of service. An upgrade is inappropriate. Relief denied.

The Veterans Administration determines eligibility for post-service benefits, not the NDRB. 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.
The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety is evident during the Applicant’s enlistment. Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, hardship, or good conduct in civilian life, subsequent to leaving the service. Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his 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 5, effective 05 Mar 93 until 21 Jul 94), 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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