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NAVY | DRB | 2005_Navy | ND0501136
Original file (ND0501136.rtf) Auto-classification: Denied


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

ex-AMHAR, USN
Docket No. ND05-01136

Applicant’s Request
The application for discharge review was received on 20050629. The Applicant requests that her characterization of service received at the time of discharge be changed to honorable. The Applicant requested a personal appearance hearing discharge review before the Board in the Washington, D.C. Metropolitan area. The Applicant did not designate a representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051206. 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 character 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 am trying to re-enlist to serve my country. I believe the reasons for my discharge were false. Please read letter from C.O. mentioning he had made a mistake in my case. Also, all of this occurred after I had been raped and I was under extreme duress because of this. I had also had a Petty Officer tell me if I slept with him that I wouldn’t have to worry about going before anymore captain’s mast’s. Please review my records carefully. Thank you!”
Applicant’s Remarks: If you have a traveling board at this time I am very close to Kirtland Air Force Base in Albuquerque, New Mexico.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Unverified Windows CAT-ASVAB test score report

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19910531 – 19910904               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19910905                      Date of Discharge: 19930929

 Length of Service (years, months, days):

         Active: 02 00 25
         Inactive: None

 Time Lost During This Period (days):

         Unauthorized absence: none
         Confinement:              none

 Age at Entry: 17 (Parental Consent)

 Years Contracted: 4

Education Level: 12                                 AFQT: 96

 Highest Rate: AMHAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.8 (2)              Behavior: 2.5 (2)                 OTA: 3 .20 (3)

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/ PATTERN OF MISCONDUCT, authority: MILPERSMAN, Article 3630600.
Chronological Listing of Significant Service Events :

929720:  Unauthorized absence, place of duty, 0800 and 1500, duty section muster.

920730:  Unauthorized absence, place of duty, 1645 duty section muster, 1700 place of duty, and not available at recall.

920810:  NJP for violation of UCMJ, Article 86 (unauthorized absence, 5 specs).
         Specification 1: 20 July 1992, 0800, failed to go to duty section muster.
         Specification 2: 20 July 1992, 1500 failed to muster for duty.
         Specification 3: 30 July 1992, 1645 failed to muster for duty.
 Specification 4: 30 July 1992 not at recall while in a duty status.
Specification 5: 30 July 1992 1700 failed to go at the time prescribed to her appointed place of duty.
          Award: Reprimand/oral, forfeiture of $100.00 per month for 1 month, reduction to next inferior pay grade (suspended for six months). No indication of appeal in the record.

920901:  Suspended reduction in rate awarded at NJP on 10 August 1992, vacated due to continued misconduct.

920902:  NJP for violations of UCMJ, Article 91 (insubordinate conduct towards a non commissioned officer, 3 specs), Article 90 (willful disobedience of a superior commissioned officer), Article 86 (place of duty unauthorized absence, 6 specs).
Award: Reduction to E-1, restriction to NAS Oceana for 30 days, extra duties for 30 days. No indication of appeal in the record.
920902:  Retention Warning: Advised of deficiencies, i.e. Article 90 (willful disobedience), Article 91 (insubordinate conduct), and Article 86 (unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
930323:  Medical evaluation by Psychiatric Clinic Naval Hospital Portsmouth, Virginia. Borderline Personality Disorder, fit for duty psychiatrically, and recommend administrative separation.

930323:  Violation of UCMJ Article 92 (failure to obey a general regulation) for possession of a .22 caliber Smith and Weston semi-automatic pistol, 220 rounds of ammunition and a 11 inch U. S. Navy Diving Knife.
930525:  NJP for violations of UCMJ, Article 92 (failure to obey a general regulation, 2 specifications).
         Specification 1: Possession of semi-automatic pistol and knife aboard NAS Oceana.
 Specification 2: Driving in excess of the ramp speed limit.
         Award: Restriction to NAS Oceana for 45 days, forfeiture of $407.00 per month for 2 months. No indication of appeal in the record.
930615:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a commission of a serious offense and commission of a pattern of misconduct.
930621:  Applicant advised of rights and having consulted with counsel, elected to appear before an administrative discharge board, to be represented at administrative discharge board, to submit statements, and to copies of documents.

930722:  Memorandum from M. J. D_, LT/MC/USNR, Flight Surgeon to President and Board Members: “I have reviewed the psychiatric evaluation of AMHAN L_ (Applicant) performed on 23 Mar 93. She was diagnosed with Borderline Personality Disorder and found fit for full duty with a recommendation for routine administrative separation. As Borderline Personality Disorder is not compatible with military service, I wholeheartedly support processing for routine administrative separation.”
930723:  An administrative discharge board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to commission of a serious offense and misconduct due to commission of a pattern of misconduct, that such misconduct warranted separation, and recommended discharge under other than honorable conditions.
930825:  Commanding Officer, Attack Squadron FORTY-TWO recommended to Commander Naval Personnel Command that Applicant be discharged under other than honorable conditions by reason of misconduct due to a commission of a serious offense and commission of a pattern of misconduct. Commanding Officer’s comments: “I concur with the findings and recommendations of the Administrative Separation Board. During her short time in VA-42, AMHAR L_ (Applicant) has demonstrated no potential for continued naval service. We have had difficultly assigning her because of her total disregard for authority and regulations. She has repeatedly shown a potential to engage in violent activities by her vigilante attitude regarding dangerous weapons. She is a detriment to good order and discipline and should be discharged as soon as possible.”

930916:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19930929 by reason of misconduct due to a pattern of misconduct (A and B) 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 (C and D).

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 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. The Applicant’s service was marred by three nonjudicial punishments for violations of UCMJ Article 86 (unauthorized absence, 11 specifications), Article 90 (willfully disobeying a superior commissioned officer), Article 91 (insubordinate conduct toward a noncommissioned officer, 3 specifications) and Article 92 (disobey an order or regulation, 2 specifications). Each violation of Article 90, 91, and 92 is considered the commission of a serious offense, as such is punishable by a punitive discharge if convicted by courts-martial. The reason for the Applicant’s discharge, a pattern of misconduct, is defined by reference (A) as two or more nonjudicial punishments 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 her conduct or that she should not be held accountable for her actions. Separation under these conditions generally results in a service characterization of under other than honorable conditions. Relief denied.

The Applicant requested that her misconduct be evaluated in view of matters in mitigation: Allegations of being the victim of an on-base rape and the victim of inappropriate sexual advances by a Petty Officer. The Applicant bears the burden of presenting substantial and credible evidence to support her issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support her issues. The record does not demonstrate that the Applicant was not responsible for her conduct or that she should not be held accountable for her actions. The NDRB takes these allegations seriously. However, in the absence of documented evidence to serve as a basis for granting an upgrade, the Board found no impropriety in the Applicant's service characterization. Relief denied.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. 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 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 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, Change 5, effective 05 Mar 93 until 21 Jul 94), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A PATTERN OF MISCONDUCT.

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 90 (disobeying a superior commissioned officer), Article 91 (insubordinate conduct toward noncommissioned officer), and Article 92 (failure to obey an order or regulation).

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 .

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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