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NAVY | DRB | 2005_Navy | ND0500496
Original file (ND0500496.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND05-00496

Applicant’s Request
The application for discharge review was received on 20050126. 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 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 20050602. After a thorough review of the available 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. “Please consider upgrade for immediate medical care for Psychological Disorder. I am submitting my training certificate to my most proudest accomplishment to gather information about myself. Please acknowledge and Send a copy of my DD214 or Equivalent.”

Additional remarks submitted by Applicant:

“Due my psychological condition I am unable to maintain or hold employment. I am asking forgiveness for insubordination that I may have caused. I willing do whatever it takes to get my life on track. I need this opportunity to upgrade my discharge in order To Receive MEDICAL Care to deal with psychological issues that has hindered my life. Thank you for your understanding. I need medical Benefits.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Certificate of Completion, Seaman Apprentice Training, dtd September 19, 1997

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     970319 - 970629  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 970630               Date of Discharge: 980106

 Length of Service (years, months, days):

         Active: 00 06 07
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: NMF* [ASVAB scores only]

 Highest Rate: SR

 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: None

 * 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 :

971125:  Page 13 entry details the Applicant’s daily violations of Article 86 from 971116-971125.

971126:  NJP for violation of UCMJ, Article 86: Absence without leave; violation of UCMJ, Article 92: Assaulting or willfully disobeying superior Commissioned Officer.
         Award: Forfeiture of $450.00 pay per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.

971126:  Retention Warning: Advised of deficiency (Unsatisfactory performance, repeated disciplinary infratcions), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

971202:  NJP for violation of UCMJ, Article 86: Absence without leave; violation of UCMJ, Article 92: Failure to obey other lawful order.
Award: Forfeiture of $450.00 pay per month for 2 months, restriction and extra duty for 45 days. No indication of appeal.

 971202:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service is under other than honorable conditions by reason of misconduct due to pattern of misconduct and commission of a serious offense as evidenced by your NJP of November 26, 1997 and December 02, 1997. [Second page of Notification Missing from record.]
971202:  Commanding Officer, USS GERMANTOWN (LSD 42), recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense. [Extracted from CO’s letter of 971215.]

971203:  Applicant advised of rights and elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

971215:  Commander Officer, Amphibious Group ONE, concurred with Commanding Officer, USS GERMANTOWN (LSD 42) and directed the Applicant's discharge under other than honorable conditions.

980106:  DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980106 under other than honorable conditions for misconduct due to a pattern of misconduct (A). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

Issue 1. 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. The Applicant’s service was marred by a retention warning and two nonjudicial punishment proceedings for violations of Articles 86 and 92 of the UCMJ. There is also evidence in the record of numerous violations of Article 86 of the UCMJ during November 1997 which were not adjudicated. 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 and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

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 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 any documentation for the Board to consider. Additionally, the Veterans Administration determines eligibility for post-service benefits not the Naval 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. 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. 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 V, Para 502, Propriety.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

D. 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.

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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