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NAVY | DRB | 2005_Navy | ND0500463
Original file (ND0500463.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND05-00463

Applicant’s Request
The application for discharge review was received on 20050125. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge 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 20050511. 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. “I BELIEVE I WOULD STILL BE IN THE NAVY TODAY IF I HAD A MORE STABLE RELATIONSHIP WITH MY HUSBAND AT THE TIME AND IF WOULD NOT HAVE BEEN MISLEAD ON SEVERAL ISSUES. MY HUSBAND WAS PHYSICALLY ABUSIVE WHICH ACCOUNTED FOR MY UA DAYS. I TRIED TO ESCAPE HIM HOPING HE WOULD BE GONE AS I HAD ASKED WHEN I CAME BACK. I ALSO HAD TO DO DRUG TESTS FROM EACH TIME I WENT UA. THE PETTY OFFICER OVER THE CASE SAID I FAILED TO APPEAR FOR MY DRUG TEST. I TOLD HIM I WAS THERE TO TAKE IT AS HE HAD INFORMED ME TO DO SO BUT THEY DID NOT HAVE ME SCHEDULED FOR ONE. HE STATED THAT I DID NOT FOLLOW A LAWFUL ORDER EVEN THOUGH I DISAGREED. HENCE DISOBEYING A LAWFUL ORDER ON MY RECORD. I ALSO SPOKE WITH MY SUPERIOR OFFICERS REGARDING DIVORCING MY HUSBAND TO FIND OUT HOW IT WOULD EFFECT MY CAREER IN THE MILITARY. AS THEY KNEW OF MY HUSBANDS ABUSE, BECAUSE THEY SENT ME TO THE DOCTOR AFTER MY HAND WAS SLAMMED IN A DOOR AND I HAD TO HAVE HOLES BURNED IN MY FINGERNAILS DUE TO THE SWELLING. I WAS INFORMED THAT IF I DIVORCED MY HUSBAND WHILE I WAS A STUDENT THAT I WOULD NOT GET CUSTODY OF MY DAUGHTER. I COULD NOT LOSE MY DAUGHTER AS HE WOULD HAVE TAKEN HER BACK TO FLORIDA. ALL I REALLY WANTED WAS TO GET OUT OF THE MILITARY LONG ENOUGH TO GET MY DIVORCE, BUT I WAS TOLD THAT WAS NOT A POSSIBILITY. I DID NOT NO WHAT ELSE TO DO. I COULD NOT LIVE IN THAT SITUATION ANYMORE NOR DID MY DAUGHTER DESERVE TO. I WANTED TO TELL THE CAPTAIN OF MY SITUATION BUT I WAS UNABLE TO DO SO AS MY HUSBAND WAS PRESENT AT MY HEARING. THERE WERE SOME OTHER ISSUES THAT I HAD WITH STATEMENTS THAT WERE MADE THAT WERE INCORRECT FROM MY SUPERIOR OFFICERS CONCERNING MY SCHOOLING. BUT INTURN THIS IS WHY I HAD TO END MY MILITARY CAREER ABRUPTLY WHICH I REGRET TO THIS DAY BECAUSE I REALLY WANTED TO SERVE THE USA AND FOLLOW IN MY FAMILYS FOOTSTEPS. I WISH THAT MY RE-ENTRY CODE COULD BE CHANGED SO THAT I MAY ONCE AGAIN SERVE IN THE MILITARY BUT I KNOW THAT IS NOT A POSSIBILITY. THEREFORE I RESPECTFULLY REQUEST THAT MY DISCHARGED BE CHANGED FROM AN OTHER THAN HONORABLE TO AN HONORABLE DISCHARGE. THANK YOU FOR YOUR TIME AND CONSIDERATION.”




 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Applicant’s DD Form 215
Letter from Applicant, dated February 12, 2005
Letter of reference from AAA Tree Experts, Inc, S_ P_, owner, dated February 16, 2005
Letter of reference from P_ Brothers Roofing and Construction, W_ P_, dated
May 7, 2002
Certificate of Completion from Tallahassee Community College, A+ Introduction to PC
Hardware, dated June 28, 2001
Certificate of Completion from Tallahassee Community College, A+ PC Repair and
Troubleshooting, dated August 02, 2001
Certificate of Completion from Tallahassee Community College, A+ Operating Systems,
dated August 30, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     990729 - 000130  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 000131               Date of Discharge: 001026

 Length of Service (years, months, days):

         Active: 00 09 25 (does not include lost time)
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (24 months extension)

 Education Level: GED              AFQT: 75

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*                 Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 5

*No marks found in Applicant’s service record.

 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 :

000914:  NJP for violation of UCMJ, Article 86 (3 Specs): Unauthorized absence; violation of UCMJ, Article 92 (1 Spec): Failure to obey a lawful order (did not go to urinalysis).
         Award: Forfeiture of $503.00 per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days, reduction to E-1 (suspended for 6 months). No indication of appeal in the record.
000914:  Retention Warning: Advised of deficiency (UCMJ Article 86 (x3) Unauthorized absence and UCMJ Article 92 Failure to obey a lawful order). Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

000928:  Suspended portions of Commanding Officer’s NJP of 000914 vacated due to continued misconduct.

000928:  NJP for violation of UCMJ, Article 86 (1 Spec): Unauthorized absence; in that Seaman Apprentice L_ N. G_ (Applicant), U.S. Navy, Service School Command, Great Lakes, Illinois, on active duty, did, on or about 0200, without authority, absent herself from her organization, to wit: Naval Training Center, Great Lakes, Illinois and did remain so absent until she was apprehended on or about 1500 hours, 19 September 2000. (totaling 3 days, 16 hours); violation of UCMJ, Article 134 (1 Spec): Breaking restriction; in that Seaman Apprentice L_ N. G_ (Applicant), U.S. Navy, Service School Command, Great Lakes, Illinois, on active duty, having been restricted to the limits of Naval Training Center, Great Lakes, Illinois, by a person authorized to do so, did, at Naval Training Center, Great Lakes, Illinois, on or about 16 September 2000, break said restriction.
         Award: Oral reprimand.

000929:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service possible being under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.

000929:  Applicant advised of rights and having elected not to consult 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.

001006:  Commanding Officer, Service School Command, Great Lakes, IL recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.

001010:  Commander, Naval Training Center, Great Lakes, IL authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

010122:  Commander, NAVPERSCOM, Millington, TN advised command separation code is in error and directed issuance of DD 215 to reflect correct SPD code of “HKA”.

 010123:  PERSUPP DET, NTC, Great Lakes, IL issues DD Form 215 to correct separation code from HKQ ( Commission of serious military or civilian offense ) to HKA ( Pattern of discreditable behavior with civil or military authorities ).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20001026 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 that her problems in the Navy can be attributed to her domestic situation, including abuse by her spouse and concerns over custody of her daughter. While she may feel that these issues are the underlying cause of her misconduct, the record clearly reflects her willful misconduct and demonstrated she was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for her conduct or that she should not be held accountable for her actions. In the Applicant's case, an other than honorable discharge is warranted because significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. The Applicant’s service was marred by a retention warning on 20000914 and two nonjudicial punishment (NJP) proceedings on 20000914 and 20000928 for violations of the following Articles of the UCMJ: 86 (unauthorized absence (a total of four specifications)), 92 (failure to obey a lawful order), and 134 (breaking restriction). The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy and falls far short of that required for an upgrade of her characterization of service. Relief on this basis is denied.

The Applicant further contends that she was unable to properly present her case or "tell the captain of my situation" at her hearing because her husband was present. T he Board examined this contention but could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. The record contains no evidence of any wrongdoing by the Applicant’s Commanding Officer or anyone else in the discharge process. The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. As such, this Board presumed that Applicant’s discharge was regular in all respects. Relief on this basis is also denied.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered. The Applicant provided two character reference letters and three certificates of completion from her college studies as documentation of her post-service. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities in order for consideration for clemency based on post-service conduct. At this time, the Applicant has not provided sufficient documentation of post-service character and conduct to mitigate the misconduct that resulted in her characterization of discharge. Therefore, relief on this basis will not be granted.

With regard to the Applicant's request to change her reenlistment code, the Applicant must understand that, since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, the Board is not authorized to change a reenlistment code. Reenlistment policy of the Navy is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

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 related to her 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), Change 18, effective
12 Dec 1997 until 21 Aug 2002, 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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