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NAVY | DRB | 2005_Navy | ND0500747
Original file (ND0500747.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND05-00747

Applicant’s Request
The application for discharge review was received on 20050330. 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 20051206. After a thorough review of the 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 character of the discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions in lieu of a trial by court-martial .

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“I WAS PRENANT AND ATTEMPTED TO BE REASSIGNED CLOSER TO HOME OF RECORD. DURING THIS SAME PERIOD, MY MOTHER WAS VERY ILL WITH DIABETES AND HYPERTENSION.”

 Applicant’s Remarks: (Taken from the DD Form 293.)

“DURING THE TIME OF MY PREGNANCY MY MOTHER WAS VERY ILL AND I WANTED MY MOTHER TO WITNESS MY CHILD’S BIRTH IN CASE HER HEALTH WOULD LATER PREVENT HER FROM BEING ACTIVE IN HIS LIFE. SINCE DICHARGE FROM SERVICE I HAVE GRADUATE FROM COLLEGE AS A PHARMACY TECHNICIAN AND CURRENTLY WAITING TO TEST FOR LICENSING. I AM QUALIFIED TO ENTER THE LOCAL POLICE ACADEMY WITH THE EXCEPTION OF MY DISCHARGE. I HAVE BECOME MORE OF A RESPONSIBLE AND CONTRIBUTING CITIZEN.”

 Documentation
Only the service and medical records 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)     20001218 - 20001226      COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 20001227             Date of Discharge: 20030916

 Length of Service (years, months, days):

         Active: 02 08 20 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 262 days
         Confinement:              Unknown

 Age at Entry: 19

 Years Contracted: 4

 Education Level: 12                                 AFQT: 58

 Highest Rate: SA

 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): National Defense Service Medal


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

UNDER OTHER THAN HONORABLE CONDITIONS/ IN LIEU OF TRIAL BY COURT MARTIAL, authority: MILPERSMAN, Article 1910-106 (formerly 3630650).

Chronological Listing of Significant Service Events :

011002:  NJP for violation of UCMJ, Article 86 (5 specs): Unauthorized absence.
 Violation of UCMJ, Article 91: Insubordinate conduct.
          Award: Forfeiture of $521 per month for 2 months, restriction and extra duty for 15 days, reduction to E-1. Forfeiture for 1 month, restriction and extra duty suspended for 6 months. No indication of appeal in the record.

 030916:  DD Form 214: Applicant’s discharge under other than honorable conditions in lieu of trial by court martial, authority: MILPERSMAN, Article 1910-106.

 Service Record did not contain the Administrative Discharge package.
Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20030916 in lieu of a trial by court-martial (A and B) with a service characterization of under other than honorable conditions. After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D). The Board presumed regularity in the conduct of governmental affairs (E).

 In the absence of a complete discharge package, the Board presumed regularity of governmental affairs. Therefore, the Board presumed the Applicant requested discharge to escape trial by court-martial; had the elements of the offense(s) for which she was charged fully explained by counsel; admitted that she was guilty of the offense(s); and that she had a complete understanding of the negative consequences of her actions. The evidence of record does not demonstrate that the Applicant was not responsible for her conduct or that she should not be held accountable for her actions. Relief denied.

The Applicant contends that her problems in the Navy can be attributed to her pregnancy and her mother’s illness. While she may feel that these factors were the underlying cause of her misconduct, the record clearly reflects her willful misconduct and demonstrated she was unfit for further service. 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 nonjudicial punishment proceedings for violations of Articles 86 (5 specs of UA) and 91 (insubordinate conduct) of the UCMJ. In addition, the Applicant’s DD –214 shows a 262 day period of lost time from 20011113 to 20020802. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy and falls far short of that required for an upgrade of her characterization of service. Relief is not warranted.

The following is provided for the edification of the Applicant. The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. 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 any post-service documentation for the Board to consider. Relief denied.

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 her 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 1910-106 (formerly 3630650), SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B. A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article 86, unauthorized absence for a period more than 30 days, and Article 91, insubordinate conduct toward warrant, noncommissioned, petty officer, upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-Martial.
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 .

 E. 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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