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NAVY | DRB | 2005_Navy | ND0500895
Original file (ND0500895.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-OS3, USN
Docket No. ND05-00895

Applicant’s Request
The application for discharge review was received on 20050428. 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 20051006. 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 and reason for discharge shall not change. The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to commission of a serious offense .
PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application and attached letter:

“UPGRADE IS REQUESTED TO GAIN ACCESS TO MONTGOMERY GI BILL. MEDICAL DOCUMENTATION IS JUSTIFICATION FOR REQUEST. ALSO TO OBTAIN CORRECTIVE SURGERY.

 FOREMOSTLY, I MUST STATE MY DEDICATION AND ALLEGIANCE TO MY COUNTRY, THE U.S. GOVERNMENT, AND MY PLEDGE OF ENLISTMENT IN THE U.S. NAVY. I MUST ALSO ACKNOWLEDGE THE SEVENTH FLEET FOR ITS DEDICATION AND COMMITMENT TO THE READINESS OF ITS SAILORS. YET, I MUST ALSO STATE GRIEVANCE AGAINST MY SUPERIORS IN AN ATTEMPT TO ASSUAGE MYSELF OF THE MALICE THAT HAS BEEN AFFLICTED UPON SUCH A VIGILANT STUDENT OF SEA LIFE. THIS MESSAGE MUST BE BRIEF DUE TO THE URGENCY OF DOCUMENTATION OF THE WRONGS THAT I HAVE SUFFERED, WHICH HOPEFULLY WILL BE RETYPED AND NOTARIZED BY A CONCERNED FAMILY MEMBER. MY NEXT MESSAGE WILL BE MORE IN DEPTH AND DETAILED. THUS, HERE ARE MY CLAIMS:

THAT A COMMADORE D_ HAS DISCRIMINATED AND CONSPIRED AGAINST ME AND HIS CONTEMPT HAS BEEN FILTERED DOWN HIS CHAIN OF COMMAND IN THE PERSONS OF MY COMMANDING OFFICER, MY DEPARTMENT HEAD (OPERATIONS OFFICER), MY CHIEF PETTY OFFICER, AND MEMBERS OF THE FIRST CLASS PETTY OFFICER ASSOCIATION, AND THAT THIS CONTEMPT HAS MANIFESTED ITSELF IN THE FOLLOWING FORMS:

1.       THE DENIAL OF MY RIGHT TO “SUBMIT” REQUEST DOCUMENTS AND GAIN RESPONSE.

2.       THE DENIAL OF ACCESSES TO TOOLS WHICH ARE DETRIMENTAL IN ACCOMPLISHING MY JOB IN A TIMELY AND PROFICIENT MANNER.

3.       THE DENIAL OF MY RIGHT TO FILE REBUTTALS TO NEGATIVE EVALUATIONS OF MY JOB PERFORMANCE.

4.       THE DENIAL OF CHOICE ASPECTS OF TRAINING WHICH WOULD ENHANCE RATE PROFICIENCY.

5.       THE WRONGFUL SIEZURE OF PERSONAL ITEMS AND THE EXPLOITATION OF THOSE ITEMS WITH THE INTENT OF INFLICTING FINANCIAL INDEQUACY.

6.       SUBTLE FORMS OF HARRASSMENT WITH THE INTENT OF POISONING MY MORALE.

7.       THE DENIAL OF KEY WATCH POSITIONS EVEN AFTER I HAVE ASCERTAINED THE PROPER QUALIFICATION.

8.       THE DENIAL OF QUALIFICATION DOCUMENTS WHICH WOULD GIVE ME THE RIGHT TO HOLD HIGHER POSITIONS AND QUALIFY FOR ADVANCEMENT.

9.       THE DENIAL OF MY RIGHT TO FILE GRIEVANCE DOCUMENTATION.

10.      THE DENIAL OF “MEDICAL TREATMENT.”

11.      VIOLATION OF MY PRIVACY IN THE RELEASE OF MEDICAL DOCUMENTATION AND THE LIKE WHICH HAVE CONTRIBUTED TO A HOSTILE WORK ENVIORNMENT.

12.      OUTRIGHT CONSPIRACY TO SABOTAGE MY INTENTIONS TO EXTEND, ADVANCE, AND PROGRESS IN MY CAREER.

OS3 G_ D_ F_ (Applicant)

[signed]

4APR99

Witness my hand and official seal this the 27 th day of March 2005.

4APR99”

Applicant’s Remarks: “MY INTENTIONS ARE TO STUDY ARCHITECTURAL ENGINEERING AT NORTH CAROLINA AGRICULTURAL AND TECHNICAL STATE UNIVERSITY AND TO ACCOMPLISH DESIGNS IN AEROSPACE ENGINEERING. MY INTENTIONS ARE TO OBTAIN CORRECTIVE SURGERY AS WELL.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s Medical Health Care Records (Active Service) (22 pages)
Applicant’s Medical Health Care Records (After discharge from service) (28 pages)
Applicant’s DD Form 214 (Member 1)
Applicant’s DD Form 214 (Member 4)
Letter from Applicant, dtd April 11 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19961023 – 19961120      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19961121             Date of Discharge: 20010220

 Length of Service (years, months, days):

         Active: 04 03 00
         Inactive: None

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

 Age at Entry: 24

 Years Contracted: 4 (17 month extension)

 Education Level: 12                                 AFQT: 61

 Highest Rate: OS3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.83 (6)             Behavior: 3.33 (6)                         OTA: 3.10

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Sea Service Deployment Ribbons (4), Navy Battle “E” Ribbon, Armed Forces Expeditionary Medal, Good Conduct Medal for Period ending 991120.


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

GENERAL (UNDER HONORABLE CONDITIONS) /MISCONDUCT, authority: MILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

980716:  Evaluation: “Petty Officer F_ (Applicant) has been counseled and given EMI on numerous occasions on being late for quarters, improper watchstanding, and disrespect to a senior petty officer.”
         [Extracted from Evaluation Report & Counseling Record, period of report 97DEC22 – 98JUN15.]
010206:  NJP for violation of UCMJ, Article 91 (3 specs):
         Specification 1: In that Operations Specialist, Third Class Petty Officer, G_ D. F_ (Applicant), U.S. Navy, USS CROMMELIN (FFG 37), on active duty, having received a lawful order from OSCS T_, a Senior Chief Petty Officer, than known by the said accused to be a Senior Chief Petty Officer, to “plot the land masses on the DRT”, an order which it was his duty to obey, did on board USS CROMMELIN in CIC, on or about 0930, 20 January 01, willfully disobey the same.
         Specification 2: In that Operations Specialist, Third Class Petty Officer, G_ D. F_ (Applicant), U.S. Navy, USS CROMMELIN (FFG 37), on active duty, having received a lawful order from OSCS T_, a Senior Chief Petty Officer, than known by the said accused to be a Senior Chief Petty Officer, to “plot the necessary information”, an order which it was his duty to obey, did on board USS CROMMELIN in CIC, on or about 0930, 20 January 01, willfully disobey the same.
         Specification 3: In that Operations Specialist, Third Class Petty Officer, G_ D. F_ (Applicant), U.S. Navy, USS CROMMELIN (FFG 37), on active duty, having received a lawful order from OSCS T_, a Senior Chief Petty Officer, than known by the said accused to be a Senior Chief Petty Officer, to “plot the data”, an order which it was his duty to obey, did on board USS CROMMELIN in CIC, on or about 0930, 20 January 01, willfully disobey the same
         Award: Forfeiture of ½ month’s pay per month for 1 month (all suspended but $200.00 dollars), restriction and extra duty for 30 days (suspended 10 days for 6 months), reduction to E-3 (suspended for 6 months). No indication of appeal in the record.

010206:  Applicant notified of intended recommendation for discharge by reason of misconduct due to a commission of a serious offense. Applicant notified that the least favorable characterization of service possible is general (under honorable conditions).
010206:  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 and to submit statements for consideration by Separation Authority.
010206:  Commanding Officer, USS CROMMELIN (FFG 37), advised the Commander, Naval Personnel Command, that the Applicant was discharged with a general (under honorable conditions) by reason of misconduct due to a commission of a serious offense. Commanding Officer’s comments: “Petty Officer F_ (Applicant) committed a serious violation of the UCMJ which clearly demonstrated his unsuitability for further naval service. His performance has been significantly less than that expected of a service member and warrants an administrative separation with a general (under honorable conditions) characterization of service.”

010220:  DD-214: Applicant discharged with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense.

The Service Record contains a partial Administrative Discharge Package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20010220 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of general (under 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).

 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. 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 failure to obey three separate orders of a senior chief petty officer. This misconduct resulted in nonjudicial punishment proceedings for violations of UCMJ Articles 91, insubordinate conduct toward warrant officer, noncommissioned officer or petty officer . Under applicable regulations, a violation of UCMJ Article 91 is considered 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. 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, in a variety of ways, that his superiors employed a number of tactics to sabotage his naval career and deny him proper medical treatment. The government enjoys a presumption of regularity in the conduct of its affairs. This presumption permits the Board to presume that the government’s agents acted in good faith, proceeded within the bounds of the law, and conformed their behavior to appropriate standards during the Applicant’s Naval service and subsequent administrative processing. The Applicant bears the burden of establishing his issues through the presentation of substantial and credible evidence. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was the victim of conspiracy or sabotage by his superiors while in the Naval service or that he was denied any medical treatment. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief denied.

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), Change 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 91, insubordinate conduct toward warrant officer, noncommissioned officer or petty officer.

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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