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NAVY | DRB | 2005_Navy | ND0500593
Original file (ND0500593.rtf) Auto-classification: Denied


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

ex-ATAN, USN
Docket No. ND05-00593

Applicant’s Request
The application for discharge review was received on 20050215. The Applicant requests the characterization of service received at the time of discharge 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 20050608. 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/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “ I have been denied all benefits promised me in my contract with the Navy-especially medical.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter to BCNR from Applicant (11 Sep ‘04)
Patient Lab Inquiry from NAVHOSP Great Lakes, IL. (24 Jul ‘00)
Reference Letter from Dr D___ E. F___, D.D.S (Uncle) (26 Mar ‘05)
Reference Letter from M___ E. J___ Sr. (Father) (26 Mar ‘05)
Reference Letter from W___ M. M___ (Grandmother and Legal Guardian) (26 Mar ‘05)
Letter of Appreciation (24 Jul ‘00)
Certificate of Completion (Electronics) (16 May ‘00)
Certificate of Completion (Seaman Apprentice Training Course A950-0070A) (14 Aug ‘00)
Applicant’s DD Form 214
Letter of Response for Reclassification to Captain R___ F. P__ (28 Aug ‘00)
Medical Document (25 Jul ‘00)
Transcript (Electronics) Class 002513
Transcript (Medical) (28 Mar ‘05) (3 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     990831 - 991006  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 991007               Date of Discharge: 030920

 Length of Service (years, months, days):

         Active: 03 11 14 (Does not exclude lost time)
         Inactive: None

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

 Education Level: 12      (GED)             AFQT: 80

 Highest Rate: AT3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.67 (3)             Behavior: 2.00 (3)                OTA: 2 .67

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR (2), NAVY”E” (2), AFEM (2), MUC, NDSM

 Days of Unauthorized Absence: 113

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :
991102:  Applicant to Great Lakes Naval Hospital for rash.

000124:  Laboratory report confirms Hepatitis-C.

000112:  Applicant reported to NATTC Great Lakes for training.

000411:  Retention Warning: Advised of deficiency (Violation of UCMJ, Article 86, fail to go.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

000620:  Retention Warning: Advised of deficiency (Violation of UCMJ, Article 86, fail to go.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

000620:  NJP for violation of UCMJ, Article 86: (4 Specifications), fail to go.
         Award: Restriction and extra duty for 4 days. No indication of appeal in the record.

000814:  Applicant transferred to NTC Great Lakes.

000905:  Applicant reported aboard USS George Washington (CVN-73) for duty.

 010627:  Applicant to unauthorized absence 0630.

010726:  Applicant missed ship’s movement.

010731:  Applicant missed ship’s movement.

010801:  Applicant declared deserter.

010831:  Applicant from unauthorized absence 2300 (65 days/S).

 010916:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86.
         Specification: Unauthorized absence from on or about 010627 until 010831 (65days/S).
         Finding: Charge I and the specification thereunder, guilty.
         Sentence: Confinement for 30 days, forfeiture of $500.00 per month for 1 month.
         CA action 010916: Approved findings of guilty and ordered the sentence executed.
011010:  Released from confinement and restored to full duty.

 020505:  NJP for violation of UCMJ, Article 92: Dereliction of duty on 020410 by not staying awake on watch.
         Award: Forfeiture of $200.00 pay per month for 2 months, restriction and extra duty for 20 days. No indication of appeal in the record.
030422:  Applicant to unauthorized absence 0700.

030422:  Applicant from unauthorized absence 2030.

030505:  Applicant to unauthorized absence.

030523:  Applicant from unauthorized absence (18 days/S).

030603:  Applicant to unauthorized absence.

030703:  Applicant from unauthorized absence (30 days/S).
030731:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86 (3 Specifications),
         Specification 1: Unauthorized absence on 030422, Specification 2: Unauthorized absence from 030505 to 030523 (18days), Specification 3: Unauthorized absence from 030603 to 030703 (30days).
         Finding: Charge I and specifications 1 through 3 thereunder, guilty.
         Sentence: Confinement: 15 days, reduction to E-3.
         CA action 030903: Approved the finding of guilty and ordered the sentence executed.
030905:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.
030905:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
030911:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by his punishment under the UCMJ and misconduct due to the commission of a serious offense as evidenced by his two summary court-martials, two nonjudicial punishments and two retention warnings for violations of the UCMJ, Article 86. ATAN J___ is an administrative burden to his department, his behavior illustrates complete contempt for the Navy.

030917:  Commander, Carrier Group EIGHT, authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

030920:  Applicant discharged.
PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030920 under other than honorable conditions for misconduct due to commission of a serious offense (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

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. T he Applicant’s service was marred by two retention warnings, two nonjudicial punishment proceedings and two summary court martials for violations of Articles 86 (unauthorized absence) and article 92 (dereliction of duty) of the UCMJ. Each of the Applicant’s two periods of unauthorized absence in excess of 30 days, constitute misconduct by reason of commission of a serious offense. 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 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 opportunites. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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 NDRB does not consider the Applicant’s stated denial of medical treatment to be of sufficient nature to exculpate the Applicant’s misconduct. In fact, the NDRB sees no connection between the Applicant’s misconduct and his medical condition. Relief is not warranted.

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 sufficient documentation for the Board to consider.

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 02 until Present, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B. In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 86, unauthorized absence for a period in excess of 30 days, if adjudged at a Special or General Court Martial.

C. 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.

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 E. 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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