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NAVY | DRB | 2005_Navy | ND0500803
Original file (ND0500803.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND05-00803

Applicant’s Request
The application for discharge review was received on 20050412. The Applicant requests that his characterization of service received at the time of discharge be changed to general (under honorable conditions). The Applicant requests a documentary record discharge review. The Applicant designated the American Legion as his representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20051221. 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 Under Other Than 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 respectfully request to have my discharge status upgraded to General in order to obtain my medical benefits. To finally resolve ongoing Foot problem since bootcamp.”

 The Applicant’s representative (American Legion) did not submit additional issues.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Statement by Applicant: “These are just a few documents o my medical history with the misdiagnosis of my feet. You will also find out that 95% of my medical records are, about my feet.”

Seven pages from the Applicant’s Medical History

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20010123 – 20010219               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20010220             Date of Discharge: 20030509

 Length of Service (years, months, days):

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

 Time Lost During This Period (days):
         Unauthorized absence: 224 days
         Confinement:              None

 Age at Entry: 20

 Years Contracted: 4 (12 months extension)

 Education Level: 12                                 AFQT: 51

 Highest Rate: ITSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.0 (1)              Behavior: 1.0 (1)                 OTA: 2. 17 (1)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Armed Forces Expeditionary Medal


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

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

011110:  Applicant charged with a violation of the UCMJ Article 86 (unauthorized absence), 10 November 2001.

011129:  NJP for a violation of the UCMJ Article 86 (unauthorized absence).
 Award: Restriction and extra duty for 30 days. No indication of appeal in the record.
011129:  Retention Warning: Advised of deficiency (VUCMJ Article 86), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
020410:  NJP for violations of the UCMJ Article 86 (unauthorized absence, 2 specifications) and Article 92 (dereliction in the performance of duties).
         Award: Forfeiture of $645.00 pay per month for 2 months, restriction and extra duty for 30 days, reduction to E-2. No indication of appeal in the record.

020903:  Applicant to unauthorized absence, 0730 on 03 September 2002.

030414:  Applicant from unauthorized absence, 14 April 2003.

 030421:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 17 April 2003, tested positive for THC.
030507:  NJP for violations of the UCMJ Article 86 (unauthorized absence, 224 days) from 03 September 2002 until 14 April 2003 and Article 112a (wrongful use marijuana).
         Award: Forfeiture of $575.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.

030507:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to the commission of a serious offense, and misconduct due to drug abuse.

030507:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
030507:  Commanding Officer, Transient Personnel Unit, Jacksonville , recommended to Chief of Naval Personnel that the Applicant be discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to a serious offense, and misconduct due to drug abuse. Commanding Officer’s comments: “ITSR G_ (Applicant) is being processed for misconduct due to pattern of misconduct, misconduct due to a serious offense, and misconduct due to drug abuse. He has been to Captain’s Mast on three different occasions with the most recent mast being for a unauthorized absence period and upon surrendering came back positive for use of marijuana. Based on the member’s previous history and current misconduct, I am recommending he be discharged from the Naval Service with an Other Than Honorable discharge.”

030508:  COMNAVPERSCOM, directed that the Applicant be discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20030509 by reason of misconduct due to a pattern of misconduct (A) with a service characterization of under other than 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).

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 outweigh the positive aspects of the member's military record. T he Applicant’s service was flawed by three nonjudicial punishments for violations of UCMJ Article 86 (unauthorized absence, 4 specifications, 224 days), Article 92 (failure to obey), and Article 112a (wrongful use of a controlled substance). Each violation of Articles 86 (in excess of 30 days), 92, and 112a 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. Separations under these conditions generally result in a characterization of service of under other than honorable conditions. The Board could discern no impropriety or inequity. Relief denied.

 The Applicant states that he wants to obtain medical benefits to resolve a foot problem. 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. 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 purpose of enhancing medical, employment, housing or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. This issue is without merit, relief denied.

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 evidence of a drug free lifestyle, proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. The Applicant did not submit 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), 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 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 .

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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