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NAVY | DRB | 2005_Navy | ND0500198
Original file (ND0500198.rtf) Auto-classification: Denied


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

ex-AKAN, USNR
Docket No. ND05-00198

Applicant’s Request
The application for discharge review was received on 20041109. The Applicant requests the characterization of service received at the time of discharge be changed to honorable or 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 20050201. 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 3630600.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“1. I would like my Discharge to be reviewed and upgraded because before the trouble with my command and Division I’ve never been to mast or in any trouble. I had gotten my good conduct medal before this happened.

2. After my medical condition became known My command and some of my Division became very vindictive to me, as evidenced of testimony given at my Captain’s Mast and the Admin. Board by AK1 D_ and AK2 P_.

3. No one assisted or advised me to get any financial or budget counseling at Navy family counseling services. I was not aware this was available to me until after my Captains Mast and was put on restriction as testified by AK1 D_

4. I had to file several Article 1150’s against my Division off. for the way he treated me.

5. I was in the process of straightening out my checking acct. when my division officer got involved.

6. I do not feel I got fair and impartial treatment from the Admin. Board, due to one of the members knew my Asuppo as they had served together before. As evidence by the letter by my Jag Lawyer, sent to the Commander of Bureau of Naval personnel.

7. AK2 M_ P_ stated that I did my job well and better than anyone else. He also stated that he could see why I had a bad attitude. This statement is in the Admin. Report along with AK2 J_ L_’s statement.

8. I never had money garnished from my check for the dishonored checks. I paid them off with my military Paycheck not via Allotment.

9. In 1988-1989 I served my country well in the Persian Gulf and was honored with my first Good Conduct Award.

10. I was allowed the Privilege to be honored with the position of Aviation Storekeeper School, in Meridian, Ms. From the USS Raleigh Due to being a good sailor.

11. I also have a signed stipulation by MS1 O_ if he had been informed that I would have had to stand inspection, that he would have made sure that I was present.

12. I have enclosed the Doctors findings about my back

13. Senator H_ K_ had his office look into the problems I had at my command at NAS Oceana ASD and a Representative of his Looked into it and spoke with my Jag Lawyer and she explained what happened.

14. I was not the only person at NAS Oceana VA, Beach, VA to have problems with NASO as Described by AK1 D_ at my Captains Mast and administrative board when she gave her testimony.

15. I Joined the Navy to escape the poverty of my surroundings and for the chance to serve my Country And to also get a good Education & Training, to learn a vocation in which where not available to me because of my economic back Ground.

16. I may never have been a 4.0. Sailor, But I served my country with pride and participated in home town area Recruiting Programs to get my other peers to Join the Navy.

17. I never went to before this time. I had no NJP, nothing bad. So Please upgrade my request to honorable or at least General so I can please be able to get some benefits, like an education, better medical treatment for my back which constantly hurts. I want to be able to say I served my Country with pride and Honor.

18. As per my request for a Court Martial most of the Charges were Dropped.

19. I was proud to be in the Navy and I wore my Uniform with pride and Honor and Distinction. Along with the Pride of Serving my Country in the Persian Gulf.

20. I’ve made some mistakes and have learned the error of my ways and paid the consequences for my actions. I am honestly and honorably requesting that my Discharge be upgraded to either Honorable or General.

Thank you

Sincerely yours,”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Employment verification, dated July 28, 2004
Character reference, dated July 25, 2004
Letter of reference, July 28, 2004
Forty-three pages from Applicant’s service record
Neuropsychology summary, dated July 27, 2002

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: 870516               Date of Discharge: 931220

 Length of Service (years, months, days):

         Active: 05 10 13
         Inactive: 00 08 23

 Age at Entry: 18                          Years Contracted: 8

 Education Level: 12                        AFQT: 53

 Highest Rate: AK3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.32 (5)             Behavior: 3.56 (5)                OTA: 3.48

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, OSR, AFEM, GCM, SSDR

 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 3630600.

 Chronological Listing of Significant Service Events :

880208:  Applicant to ordered to active duty for 36 months under the Active Mariner Program.
900320:  Applicant extended active duty contract for 21 months.

910311:          Applicant extended active duty contract for 13 months.

 920521:  Counseling: Advised of deficiency (performance, financial behavior, substandard dress/appearance, responsibilities and adverse attitude), notified of corrective actions and assistance available.

920610:  Counseling: Advised of deficiency (support of dependents), notified of corrective actions and assistance available.

920616:  Counseling: Advised of deficiency (support of dependents), notified of corrective actions and assistance available.

920625:  Counseling: Advised of deficiency (financial counseling), notified of corrective actions and assistance available.

920721:  Retention Warning from Naval Air Station, Oceana: Advised of deficiency (Misconduct as evidenced by your dishonorable failure to pay just debts, as evidenced by failing to support your family and by failing to pay your phone bill, credit cards and automobile loan), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 920803:  Counseling: Advised of deficiency (private indebtedness), notified of corrective actions and assistance available.

930409:  Counseling: Advised of deficiency (private indebtedness and responsibilities), notified of corrective actions and assistance available.

930416:  Applicant acknowledged receipt of nonpunitive letter of instruction.

930930:  NJP for violation of UCMJ, Article 89: Disrespect toward a superior commissioned officer; violation of UCMJ, Article 92: Failure to obey a lawful order; violation of UCMJ, Article 134 (6 specs): (1-5) Check, worthless, making and uttering by dishonorably failing to maintain funds, (6) Dishonorably fail to pay debt.
         Award: Forfeiture of $100 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. Forfeiture suspended for 3 months. Appealed 931001. (Appeal decision not found, and based upon the CO’s letter of 931110, presumed by the NDRB to be denied.)
930930:  Naval Air Station Oceana notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a set pattern of failure to pay just debts and misconduct due to commission of a serious offense as evidenced by your Commanding Officer’s nonjudicial punishment of 930930.
931004:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an administrative discharge board.
931101:  An administrative discharge board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a set pattern of failure to pay just debts and misconduct due to commission of a serious offense , that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

931110:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a set pattern of failure to pay just debts and misconduct due to commission of a serious offense.

931130:  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 on 19931220 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).

Issues 1, 7, 8, 9, 10, 16, 18 and 19. 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 one occasion for disrespect to an officer, failure to obey lawful orders, and dishonorably failing to maintain sufficient funds. The Applicant was also counseled on numerous occasions for his established pattern of failing to honor his financial obligations. 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. The positive aspects of the Applicant’s record do not mitigate his misconduct. An upgrade is inappropriate. Relief denied.

Issues 2, 4, 5, 13 and 14. The Board’s regulations limit its review to a determination on the propriety and equity of the discharge. Upon review of the Applicant’s statements, documentation provided and service record, the Board did not discern that the Applicant’s chain of command treated him in such a manner that would refute the presumption that he was properly and equitably discharged under other than honorable conditions for misconduct due to a pattern of misconduct. Relief denied.

Issue 3. The Board found no indication that the Applicant was unfairly denied assistance by the Navy to resolve his financial problems. This issue does not provide a basis for relief.

Issues 6 and 11. The Board did not discern an inequity or impropriety in the conduct of the Applicant’s administrative discharge board. The Applicant’s issues and Letter of Deficiency submitted by his defense counsel do not refute the presumption that he was properly and equitably discharged under other than honorable conditions for misconduct due to a pattern of misconduct. Relief denied.

Issues 12 and 15. The Applicant’s medical condition and personal background does not mitigate his established pattern of failing to pay debts, disrespect to superior officers, or disobedience of lawful orders sufficient to warrant an upgrade to his discharge. Relief denied.

Issue 17. 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.
Issue 20. 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, 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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