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NAVY | DRB | 2005_Navy | ND0500502
Original file (ND0500502.rtf) Auto-classification: Denied


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

ex-FA, USN
Docket No. ND05-00502

Applicant’s Request
The application for discharge review was received on 20050131. The Applicant requests the characterization of service received at the time of discharge 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 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. “My discharge was inequitable because it was based on one isolated incident, I served 2 yr of active serve during that time I serve at war and other activities. I suffer from a kidney failure which was discover in my time of service and I was being treated for, due to my mistake I was discharge under OTH, but my medical condition was not evaluated to a full extent. All I respectfully request is a updated to general discharge so I can medically have a chance to better my health and take care of my family if any questions please call 787-871-XXXX. Thank you for your help.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Letter from Vet Center dated May 24, 2004
Response Notice from National Personnel Record Center to Vet Center, received 24 May 2004
Response Letter from Department of Veterans Affairs dated November 9, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     010117 - 010806  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 010807               Date of Discharge: 030926

 Length of Service (years, months, days):

         Active: 02 01 04 (Does exclude lost time)
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 39

 Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (1)             Behavior: 3.00 (1)                OTA: 3.00

 Military Decorations: None

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

 Days of Unauthorized Absence: 17

 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 :

010807:  Applicant reported for initial tour of active duty.

011201:  Applicant reported aboard USS CONSTELLATION (CV-64).

020610:  UA from USS CONSTELLATION (CV-64) 0645, 020610.

 020612:  Surrendered to military authorities on board USS CONSTELLATION (CV-64) 0645, 020612 (2days/S). Retained on board pending disciplinary action.

020823:  Applicant to unauthorized absence, 0700.

020827:  Applicant from unauthorized absence, 0700 (4 days/S).

020901:  Applicant to unauthorized absence, 0700.

020904:  Applicant from unauthorized absence, 0700 (3 days/S).

020927:  Applicant to unauthorized absence, 0700.

020930:  Applicant from unauthorized absence, 0700 (3 days/S).

021014:  Applicant to unauthorized absence, 1730.

021016:  Applicant from unauthorized absence, 2322 (2 days/S).

021231:  NJP for violation of UCMJ, Article 86: (3 Specifications); Additional Charge: violation of UCMJ Article 86: Unauthorized absence from E-4 Advancement Exam, located at Recruiting District, Earle New Jersey on 020917.
Award: Forfeiture of $350.00 pay per month for 2 months, restriction for 14 days, extra duty for 28 days. No indication of appeal in the record.
030106:  Retention Warning: Advised of deficiency (Unauthorized absence from USS CONSTELLATION from 020823 until 020827; Unauthorized absence from USS CONSTELLATION from 020901 until 020904; Unauthorized absence from USS CONSTELLATION from 020927 until 020930; Unauthorized absence from USS CONSTELLATION from 021014 until 021016; Unauthorized absence from E-4 Advancement Exam on 020917) , notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030501:  Applicant to unauthorized absence, 0000.

030504:  Applicant from unauthorized absence, 1130 (3 days/S).

030519:  NJP for violation of UCMJ, Article 86; violation of UCMJ, Article 92: (2 Specs); Spec 1: Failed to obey a lawful order issued by the CO, USS CONSTELLATION, by failing to sign the liberty log prior to leaving the ship; Spec 2: Failed to obey a lawful order issued by the CO, USS CONSTELLATION, by failing to have a buddy with him while on liberty in Fremantle, Australia.
         Award: Forfeiture of $300.00 pay per month for 2 months, restriction for 14 days, extra duty for 21 days, reduction to E-2 (suspended for 6 months. No indication of appeal in the record.

030715:  Applicant transferred from USS CONSTELATION (CV-64).

030805:  Applicant reported to Naval Region Southwest, Transient Personnel Unit, San Diego, Ca.

030902:  NJP for violation of UCMJ, Article 123: Did on 030802 with intent to defraud, make a false signature of LCDR D.A. B_ to a check with the words, to wit: ONE THOUSAND TWO DOLLARS AND ZERO CENTS, which would, if genuine, apparently operate legal harm to another.
         Award: Forfeiture of $645.00 pay per month for 2 months, restriction for 60 days, reduction to E-2. No indication of appeal in the record.
030902:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct commission of a serious offense and misconduct pattern of misconduct.
030829:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation

030915:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of serious offenses and pattern of misconduct.

030922:  Commander, Navy Region Southwest authorized the Applicant's discharge under other than honorable conditions by reason of misconduct pattern of discreditable behavior with civil or military authority.

030926:  DD Form 214: Applicant discharged

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030926 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: When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. 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 nonjudicial punishment proceeding for multiple violations of Article 86 (unauthorized absence) a retention warning and two subsequent nonjudicial punishment proceedings for violations of Articles 86 (unauthorized absence), 92 (failure to obey a lawful order) and 123 (forgery) of the UCMJ. 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.
Furthermore, the Board disagrees with the Applicant's contention that the discharge was inequitable. The summary of service clearly documents the pattern of misconduct by a pattern of discreditable behavior for which the Applicant was discharged. After reviewing the Applicant's entire service record, the Board found that the characterization of the Applicant's discharge as other than honorable was equitable and consistent with the characterization of discharge given others in similar circumstances.

The applicant appears to imply that his separation was inequitable in that an existing service-connected disability was not fully evaluated prior to his administrative separation. For the Applicant’s edification, departmental regulations provide that separation by reason of misconduct in which an other than honorable discharge (OTH) is awarded supersedes disability evaluation and separation. Accordingly, the Board found no equitable basis under this issue on which to grant relief.

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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing medical, employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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 documentation to support any claims of post-service accomplishments or any other evidence related 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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