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NAVY | DRB | 2005_Navy | ND0500575
Original file (ND0500575.rtf) Auto-classification: Denied


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

ex-CECA, USN
Docket No. ND05-00575

Applicant’s Request
The application for discharge review was received on 20050208. 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. Subsequent to the application, the Applicant obtained representation from the Veterans of Foreign Wars.

Decision

A documentary review was conducted in Washington, D.C. on 20050713. 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: GENERAL (UNDER 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 am trying to Enroll In College to be a youth minister. As you can see with the Documents Provided my record was reviewed and I received an Honorable My DD 214 Still States a General Discharge. If you look on Item 23 I had filled out a chit for Early Sep. They called it a Reduction of rate. I ran a chit and it was Approved for early separation By 4 months. I was not separated for Misconduct. As you can see I had earned a good Conduct Medal for good Conduct. Please review my record so I can go to school. You can see I have done more good than Bad.”

Remarks: “With all do respect,
I was discharged after 48 months of service. I received a good conduct award, and Deployed 4 times for 7 months each time. As you can see in my Evals a was a great Construction man with a weight problem. I am trying to go to college to be a youth Minister. 6 months after my discharge a letter and a Certificate Stating that my record was reviewed and changed to Honorable. I sent a copy to you to see. My command New that the Reason for my Enlistment was for VA Benefits (Education) Please Review my service Record. Thank you Mr. M_ B_(Applicant) SR.

Additional issues submitted by Applicant’s counsel/representative (Veterans of Foreign Wars):

2. “We believe the discharge is inequitable because the Applicants service was overall satisfactory. We agree an early separation was not in order however; he should have been able to stay until the end of his enlistment. Request you change the discharge as requested.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s Honorable Discharge Certificate, dated October 4, 2002
Applicant’s DD Form 214
Applicant’s DD Form 215
Meritorious Mast
Evaluation Report and Counseling Record, dated July 27, 2000 (2 pages)
Evaluation Report and Counseling Record, dated July 25, 2001 (2 pages)
Evaluation Report and Counseling Record, dated July 15, 1999 (2 pages)
Certificate of Nomination, American Legion

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     961212 - 970502  ELS
                  USNR (DEP)      980114 - 980120  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 980121               Date of Discharge: 021004

 Length of Service (years, months, days):

         Active: 04 08 14
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 55

 Highest Rate: CECN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.20 (5)             Behavior: 1.80 (5)                OTA: 2.77

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, GCM, NER, NDSM, Pistol Marksmanship Ribbon, Rifle Expert Medal

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

 Chronological Listing of Significant Service Events :

980512:  NJP for violation of UCMJ, Article 92 (2 specifications): Failure to obey other or regulation on 980417-980418.
         Award: Restriction and extra duty for 14 days. No indication of appeal in the record.
980512:  Retention Warning: Advised of deficiency (Misconduct as evidenced by officer in charge’s nonjudicial punishment for violation of UCMJ, Art. 92 (Failure to obey other order or regulation) 2 specifications.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 000523:  Retention Warning: Advised of deficiency (Violation of a lawful order by wrongfully failing to officially notify the chain of command prior to renting a vehicle and by wrongfully failing to list a second driver on the rental contract.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

000601:  Applicant diagnosed alcohol dependent, completed alcohol rehabilitation treatment, prognosis for recovery considered guarded due to desire to one day drink socially.

000309:  Counseling: Applicant advised that he failed the [09/99] physical readiness test by failing the height/weight and body fat and placed on the command’s sponsored physical conditioning program. Sources of assistance included. Advised if this is the third failure in a four year period, you will be process for administrative separation.
001205:  Counseling: Applicant advised that he failed the Physical Fitness Assessment readiness test by exceeding the height/weight and body fat limits.

010424:  Counseling: Applicant advised that he failed the Physical Fitness Assessment readiness test by exceeding the height/weight and body fat limits.

020314:  Counseling: Applicant advised that he failed the Physical Fitness Assessment readiness test by exceeding the height/weight and body fat limits.

020509:  Special Court Martial:
         Charge I: violation of the UCMJ, Article 86 (3 specifications):
         Specifications 1-3: Failure to go to appointed place of duty on 020601, 010717 and 011016.
         Findings: to Charge I and specifications thereunder, guilty.
         Sentence: Reduction to E-2.
         CA 021101: Sentence approved and ordered executed.

020627:  Applicant attended weight management class, Nutrition Clinic, USNH Okinawa, Japan.

020918:  Applicant notified of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct. The least favorable characterization of service possible is general (under honorable conditions).
020918:  Applicant advised of rights and having consulted with qualified counsel, elected to waive all rights.
020918:  Commanding Officer, U.S. Naval Mobile Construction Battalion One directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.

021202:  Commanding Officer’s report of administrative separation to Commander, Naval Personnel Command (Pers-83). Applicant discharged with a general (under honorable conditions) by reason of misconduct due to a pattern of misconduct. Commanding Officer’s comments (verbatim): “CECA B_ (Applicant) had requested early separation from his EAOS. However, as a result of recent misconduct and his continuous administrative and disciplinary burden to his chain of command and the Battalion, he was in no way deserving of an Honorable discharge. Therefore, I chose to administratively separate him for Pattern of Misconduct with a General (Under Honorable Conditions) Characterization of service.”

030821:  Letter from Commanding Officer, Naval Reserve Personnel Center to Applicant.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021004 with a general (under 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. Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question. No such impropriety or inequity is evident during the Applicant’s enlistment. The Applicant contends that he served the United States well and he is entitled to an upgrade. 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 discharge is warranted for behavior not sufficiently meritorious to warrant an honorable discharge. T he Applicant’s service was marred by nonjudicial punishment proceedings for a violation of UCMJ Article 92 for orders violations, repeated counselings for failure of body fat standards, two Page 13 counselings/retention warnings and one special court-martial conviction for three violations of UCMJ Article 86, failure to go to appointed place of duty. 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. Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service. Relief is not warranted.

The Applicant contends that he was issued an honorable discharge certificate and therefore is entitled to an upgrade of his characterization of service to honorable. As proof, the Applicant submitted a copy of the honorable discharge certificate to the Board for consideration. After careful consideration of the evidence of record, the Board can only conclude the Applicant’s receipt of the honorable discharge certificate was an administrative error. Specifically, the evidence shows that the Separation Authority, Commanding Officer, U.S. Naval Mobile Construction Battalion One, directed the Applicant’s separation by reason of misconduct due to a pattern of misconduct. The evidence of record further shows that the Separation Authority directed this separation to be a general (under honorable conditions). Nothing in the record contradicts or overrides the Separation Authority’s decision. As such, the Board concluded that relief on this issue is without merit.

 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 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. 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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