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NAVY | DRB | 2005_Navy | ND0500524
Original file (ND0500524.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-AMAN, USN
Docket No. ND05-00524

 Applicant’s Request
The application for discharge review was received on 20050203. The Applicant requested that his characterization of service received at the time of discharge be changed to honorable. The Applicant requested a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation from the American Legion.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20051102. After a thorough review of all 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 characterization of the discharge shall not change. The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to a pattern of misconduct .

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“I was diagnosed with a Psychological Disorder while in service.

I filed a claim with the Veterans Affairs Administration upon release from the service and was rated with a 50% disability for Dysphonic Disorder.

Due to this and other problems related to this the Dysphonic Disorder; I had problems while in the Navy.

After release from the Navy I went to the VA and I am now receiving the help I need.

I realize now the problems I was having were/ are a disability and not a discipline problem.

Please reconsider my current discharge type and advise if any additional information is needed.

Thank you for your kind attention in this matter.”

 Representative submitted no issues.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19940513 - 19940517      COG
          Active: USN      19940518 - 19980420      HON
Period of Service Under Review :
Date of Enlistment: 19980421             Date of Discharge: 20020628

 Length of Service (years, months, days):

         Active: 04 02 07                  (Total Service: 08 01 10)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              None

 Age at Entry: 25

 Years Contracted: 6

 Education Level: 12                                 AFQT: 47

 Highest Rate: AMH3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NA*                  Behavior: NA*             OTA: NA*

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal (2); Armed Forces Expeditionary Medal (2); Armed Forces Service Medal; Sea Service Deployment Ribbon (2); Good Conduct Medal (2); Navy Unit Commendation.
* Not Available


Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/ PATTERN OF MISCONDUCT, authority: MILPERSMAN, Article 1910-140 (formerly 3630600).
Chronological Listing of Significant Service Events :

980421:  Reenlisted this date for a term of 6 years.
010329:  NJP for violation of UCMJ, Article 86 (unauthorized absence) on 020313.
         Award: Extra military instruction for 7 days. No indication of appeal in the record.

010329:  Retention Warning: Advised of deficiency (misconduct as evidenced by periods of unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 010409:  Applicant to unauthorized absence at 0630-0810 on 010409.

 010417:  NJP for violations of UCMJ, Article 86 (absence without leave) and Article 92 (failure to obey order).
         Award: Reduction to E-3. Reduction suspended for 6 months. No indication of appeal in the record.

010420:  Reduction in pay grade awarded at NJP on 010417 vacated due to continued misconduct.

010905:  NJP for violations of UCMJ, Article 86 (unauthorized absence) and Article 107 (false official statement).
         Award: Forfeiture of $692 per month for 1 month. No indication of appeal in the record.

020628:  DD Form 214: Applicant discharged with a general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.

 Service Record was missing elements of the summary of service and did not contain the administrative discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20020628 by reason of misconduct due to a pattern of misconduct (A) with a service characterization of general (under honorable conditions). After a thorough review of all 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 Board presumed regularity in the conduct of governmental affairs (D).

 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. A general (under 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 three nonjudicial punishment proceedings for violations of UCMJ Article 86 (unauthorized absence), Article 92 (failure to obey), and Article 107 (false official statement). Each violation of Articles 92 and 107 is considered the commission of a serious offense, as such is punishable by a punitive discharge if convicted by courts-martial. A pattern of misconduct, the reason for the Applicant’s discharge, is defined as more than one nonjudicial punishment during a single enlistment. There is credible evidence in the record that the Applicant was guilty of multiple infractions of the UCMJ. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Separation under these conditions generally results in a characterization of service of less than honorable. Relief denied.

The Applicant contends that he was not responsible for his behavior because of his psychological disorder. The requirement to present substantial and credible evidence to support his issue is that of the Applicant. There is no evidence in the record, nor has the Applicant produced any evidence, to support his contentions. To the contrary, the record clearly reflects his misconduct. When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization based 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 employment, medical, housing or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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. The Applicant submitted no post service documentation for the board’s consideration.

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), 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, Para 211, Regularity of Government Affairs .

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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