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NAVY | DRB | 2005_Navy | ND0500683
Original file (ND0500683.rtf) Auto-classification: Denied


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

ex-ABEAA, USN
Docket No. ND05-00683

Applicant’s Request
The application for discharge review was received on 20050309. The Applicant requests the Discharge 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 designate a representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20050831. 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) by reason of disability severance pay.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“I would like my DD 214 to read honorable for when I apply for federal employment. My request is being made because I feel the one I received was given based on a personal grudge. The petty officer in charge of sailors on light & limited duty wasn’t making the work light and limited. I was walking with a cane and the petty officer wanted me to climb a latter to paint. When I expressed to him I was having difficulties performing the task, he started coming down on me. My doctor at the time even called him to inform him of limitations. He took me telling the doctor going over his head. This officer road my back until my discharge came down.”

 Documentation
Only the service and Physical Evaluation Board’s record were reviewed. The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19960413 - 19960424      COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19960425             Date of Discharge: 19971008

 Length of Service (years, months, days):

         Active: 01 05 14 (Does not exclude lost time)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 4 days
         Confinement:              None

 Age at Entry: 19

 Years Contracted: 4

 Education Level: 12                                 AFQT: 37

 Highest Rate: ABEAA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.0 (1)              Behavior: 2.0 (1)                 OTA: 2 .00

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): None


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

GENERAL (UNDER HONORABLE CONDITIONS)/DISABILITY, SEVERANCE PAY, authority: MILPERSMAN, Article 3620270.
Chronological Listing of Significant Service Events :

961029:  Applicant to unauthorized absence at 0645 on 961029.

 961030:  Applicant from unauthorized absence at 0700 on 961030 (1 day/surrendered).

961115:  Applicant to unauthorized absence at 0645 on 961115.

 961118:  Applicant from unauthorized absence at 0700 on 961118 (3 days/surrendered).
970211:  Applicant placed in a limited duty status for 6 months. Applicant’s limited duty limitation(s) are: No stairs. No prolonged ambulatory. No PRT. No carrying over 20 pounds. No jumping or running.

 970422:  Medical Board Report, Naval Medical Center, Portsmouth, VA
 Diagnosis: Nonspecific multiple musculoskeletal pain.
          Opinion of the Board: Medical condition interferes with the reasonable performance of assigned duties and refers case to the Physical Evaluation Board for fitness of duty determination.

970508:  Applicant’s statement disagreeing with doctor’s diagnosis on the nonspecific multiple musculoskeletal pain.

970611:  Preliminary Findings of the Physical Evaluation Board Proceedings: Finding: Fit: Recommended Disposition: Fit to continue on active duty.

970709:  Applicant requested the Record Review Panel reconsider the findings based upon new or additional information supporting request. If there is no change to the Preliminary Findings based upon the reconsideration, Applicant requested a formal hearing.

970709:  Applicant’s statement in rebuttal to the PEB findings. [Dated extracted from date on top of page (faxed)]

970801:  Reconsideration of Preliminary Findings of the Physical Evaluation Board Proceedings: Finding: Unfit. Recommended Disposition: To be separated from active duty with severance pay. Unfitting Conditions: Nonspecific multiple musculoskeletal pains.

970807:  Applicant accepted the reconsidered findings from the Physical Evaluation Board.

970812:  President, Physical Evaluation Board requested CNP to effect separation with severance pay but without further disability benefits due to member being found unfit to perform his duties.

970919:  BUPERS directed Applicant’s discharge with disability, severance pay.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19971008 by reason of disability with severance pay with a service characterization of general (under honorable conditions) (A). 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 (B and C). The Board presumed regularity in the conduct of governmental affairs (D).

 The Applicant was found unfit for duty and recommended for separation with severance pay by a competent medical authority on 19970812. A general 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 two unadjudicated violations of Article 86 of the UCMJ for a total of four days in unauthorized absence. The Applicant’s only performance evaluation shows that his performance and conduct marks were only 2.0/2.0 respectively and the corresponding remarks revealed that his performance was unsatisfactory. 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 Applicant contends that his discharge characterization was based on a “personal grudge.” He implies that a “petty officer in charge of sailors on light and limited duty” was somehow responsible for his discharge characterization. The record, however, contains no evidence of any wrongdoing by any petty officer or anyone else in the discharge process. The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. As such, this Board presumed that Applicant’s discharge was regular in all respects. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Relief is not warranted.

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, (NAVPERS 15560C), Change 14, effective 03 Oct 96 until
11 Dec 1997, Article 3620270, SEPARATION OF ENLISTED PERSONNEL BY REASON OF DISABILITY.

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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