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NAVY | DRB | 2005_Navy | ND0500071
Original file (ND0500071.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND05-00071

Applicant’s Request
The application for discharge review was received on 20041020. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requested a documentary record review. The Applicant did not list a representative on DD Form 293. Subsequent to the application, the Applicant obtained representation by the American Legion.

Decision

A documentary review was conducted in Washington, D.C. on 20050224. 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. “During the time I was having problems, I was dealing with the death of my father. He passed away on Oct 18, 2002. I was very close to my father and when he passed away, I found it very difficult to cope and the additional stress of being in boot camp on PT hold. I don’t believe my conduct warranted the type of discharge given.”

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

 2. Equity Issue: Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174D, Part V, Paragraph 503, as it pertains to post-service conduct, in assessing the merits of this application.

In accordance with Title 32, CFR, Section 724.166 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to the Applicant’s petition.

Review of the available records reflects that this former member maintained performance and conduct markings of 2.0 ITA and earned the NDSM. H e was awarded NJP on 030205 for VUCMJ, Articles 86 (5 specs) and NJP on 030312 for VUCMJ, Article 86 (8 specs). Following due process notifications, he discharged on 030321 Under Other Than Honorable Conditions due to a pattern of misconduct as authorized by NAVMILPERSMAN, Article 1910-140.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because personal and family problems resulting from the untimely death of his father contributed to and mitigated his misconduct of record. He has submitted 10 pages of additional documentation on support of his issue for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised. To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by Title 10, USC, Section 1553 and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Northland Counseling Services, dated August 26, 2004 (2 pages)
Letter from BCNR, dated August 9, 2004
DD Form 149
Letter from Applicant, undated
Reference Letter from Applicant’s Grandmother, undated (2 pages)
Reference Letter from Applicant’s Mother, dated February 16, 2004
Reference Letter from Applicant’s Uncle, dated February 27, 2004
Reference Letter from D_ E. M_, Personal Friend, dated March 2004
Reference Letter from B_ C. A_, Teacher, dated February 2004
Letter from R_ B_, Veteran Service Officer, dated May 20, 2004
Letter from R_ B_, Veteran Service Officer, dated October 4, 2004
VA Claim Form 21-22
Release of Information Authorization
DD Form 214
Letter from R_ B_, Veteran Service Officer, dated November 10, 2004


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     011207 - 020617  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 020618               Date of Discharge: 030321

 Length of Service (years, months, days):

         Active: 00 09 04
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 86

 Highest Rate: AR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NOB                           Behavior: 2.00 (1)                OTA: 2.00

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 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 :

030205:  NJP for violation of UCMJ, Article 86 (5 Specifications), Specification 1: Absent from place of duty on 030113, Aviation Electrician’s Mate (AE) Schoolhouse; Specification 2: Absent from place of duty on 030114, Aviation Electrician’s Mate (AE) Schoolhouse; Specification 3: Absent from place of duty on 030115, Aviation Electrician’s Mate (AE) Schoolhouse; Specification 4: Absent from place of duty on 030116, Aviation Electrician’s Mate (AE) Schoolhouse; Specification 5: Absent from place of duty on 030205, Aviation Electrician’s Mate (AE) Schoolhouse.
          Award: Forfeiture of $268.00 pay per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.

030205:  Retention Warning: Advised of deficiency (OIC’s nonjudicial punishment on 030205 for violation of Article 86 x 5, Unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030312:  NJP for violation of UCMJ, Article 86: (8 Specifications), Unauthorized absence, less than 24 hours.
         Award: Forfeiture of $575.00 pay per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
030312:  Applicant notified of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to a pattern of misconduct. Applicant did not object to the separation.
030312:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ, Article 27(b), elected to waive all rights.

030318:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

030318:  Commander, Naval Education and Training Command 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 20030321 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: The Applicant contends his disciplinary problems were the result of stress caused by the death of his father. 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 most members of the Navy serve honorably 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. 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. The Applicant’s service was marred by award of two nonjudicial punishment (NJP) proceedings for violations of UCMJ Article 86 (Unauthorized absences – 13 Specifications). 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 characterization of service. Relief denied.

Issue 2: 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, 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. 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), re-issued October 2002, effective 22 Aug 2002 until Present, 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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