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NAVY | DRB | 2005_Navy | ND0501206
Original file (ND0501206.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. ND05-01206

Applicant’s Request
The application for discharge review was received on 20050712. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “receive VA Benefits.” 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 20060209. 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 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, B_ D_ (Applicant) would like to have my discharge upgraded to apply for VA Benefits. I have recently (2 ½ years ago) been diagnosed with depression. I feel that this depression has been ongoing since I was in the military. I began missing time & going AWOL. When I returned I received my discharge papers. I was going through tough time then, and did not know how to ask for help. I have been dealing with this for 15 years. I have been fired from jobs due to my depression problems, due to not coming to work. I am now homeless and need help. I went to VA hospital and they told me that I needed to get my discharge upgraded. Until then they will not be able to help me. I enrolled in the military with the intent to finish the time I enlisted for. If not for my problem with depression, I know I would have finished. Please review my records and send me your answer. I am to take that back to VA.”

 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            19880722 – 19880909      ELS (Drugs)
         Inactive: USNR (DEP)     19890721 – 19890904      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19890905             Date of Discharge: 19920924

 Length of Service (years, months, days):

         Active: 03 00 20 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence:    88 days
         Confinement:                       19 days

 Age at Entry: 19

Years Contracted: 4

Education Level: 12                                 AFQT: 21/34

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.5 (3)              Behavior: 3.4 (3)                 OTA : 3.5

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Southwest Asia Service Medal (w/Bronze Star) Sea Service Deployment Ribbon


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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority: MILPERSMAN, Article 3630600.
Chronological Listing of Significant Service Events :

911104:  Applicant to unauthorized absence, 0700 on 911104.

911104:  Applicant surrendered on board USS NIMITZ (CVN 68), at 0745 on 911104.

911104:  Applicant to unauthorized absence, 0900, on 911104.

911105:  Applicant surrendered on board USS NIMITZ (CVN 68), at 0700, on 911105.

911222:  Applicant to unauthorized absence, 0700 on 911222.

920103:  Applicant surrendered on board USS NIMITZ (CVN 68), at 1300, on 920103 (12 days).

920129:  NJP for violation of UCMJ, Article 86 (3 Specs):
Specification 1: Unauthorized from unit from 0700 to 0745 on 9 November 1991.
Specification 2: Unauthorized from unit from 0900, 4 November 1991 to 0700, 5 November 1991.
Specification 3: Unauthorized from unit from 0700, 22 December 1991 to 1300, 03 January 1992.
          Award: Forfeiture of $200.00 pay per month for 1 month, restriction for 20 days. No indication of appeal in the record.
920318: Retention Warning: Advised of deficiency (Violation of the UCMJ, Article 86 (3 specs). (1) UA from NIMITZ from 0700, 4 November 1991 to 0745. 4 November 1991. (2) UA from NIMITZ from 0900, 4 November 1991 to 0700, 5 November 1991. (3) UA from NIMITZ from 0700, 22 December 1991 to 1300, 03 January 1992), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 920319:  NJP for violation of UCMJ, Article 92: Violated a lawful general regulation by wrongfully wearing an earring on board USS NIMITZ on March 12, 1992.
         Award: Forfeiture of $300.00 pay per month for 1 month, restriction for 10 days. No indication of appeal in the record.
920409:  Retention Warning: Advised of deficiency (Violation of the UCMJ Article 92, Applicant wrongfully wore an earring on board USS NIMITZ (CVN 68) on 12 March 1992), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920501:  Applicant to unauthorized absence, 1230 on 920501.

920513:  Applicant surrendered onboard USS NIMITZ (CVN 68) at 2110 on 920513 (12 days).

920516:  Applicant to unauthorized absence, 0700 on 920516.
920527:  Applicant missed the movement of USS NIMITZ (CVN 68) on 920527.

920604:  Applicant missed the movement of USS NIMITZ (CVN 68 on 920604.

 920616:  Report of Declaration of Deserter (NMPC 1600-3). Applicant declared a deserter on 920616 having been an unauthorized absentee since 0700, 920516 from USS NIMITZ.

920708:  Report of Return of Deserter (NMPC 1600-2). Applicant surrendered to military authorities on 920708 (2125). Retained on-board USS NIMITZ (CVN-68) for disciplinary action (53 days).
920715:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86 (2 specs):
         Specification 1: UA from NIMITZ from May 01, 1992 to May 13, 1992.
         Specification 2: UA from NIMITZ from May 16, 1992 to July 08, 1992.
         Charge II: violation of the UCMJ, Article 87 (2 specs):
         Specification 1: Missed the movement of NIMITZ on May 27 1992.
         Specification 2: Missed the movement of MINITZ on June 04, 1992.
          Sentence: Forfeiture of $100.00 pay per month for 1 month, reduction to E-1, confinement for 24 days followed by 3 days of confinement on bread and water.
          CA action 920727: Sentence approved and ordered executed. The Naval Brig, Naval Station Puget Sound, Seattle Washington is designated as the place of confinement.

920715:  Found fit for confinement.

920803:  Found fit for confinement with bread and water.

920806:  Applicant notified of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct and misconduct due to commission of serious offenses as evidenced by service record. Applicant notified that the least favorable characterization of service possible is under other than honorable conditions.
920806:  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. Applicant objected to the separation.
920813:  Commanding Officer, USS NIMITZ (CVN 68), recommended to BUPERS, that Applicant be discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of serious offense as evidenced by service record. Commanding Officer’s comments: “SNM received CO’s NJP on 29MAR92 for UA. SNM received CO’s NJP on 19MAR92 for wearing an earring on board ship. After NJP, SNM was issued and acknowledged a page 13 counseling/warning that any future misconduct may result in processing for an administrative discharge under other than honorable conditions. Despite that warning, SNM’s serious and continued misconduct cannot be tolerated and is in compatible with maintaining high standards of discipline, performance and readiness. SNM possesses no potential for further naval service. I strongly recommend that SNM be separated from the naval service with characterization of service as other than honorable.”

920822:  USS NIMITZ medical department: Dependency evaluation.
Assessment: Positive alcohol dependence.
Plan: Recommend Level II treatment (patient is not amenable to Level III treatment).
920907:  Applicant to unauthorized absence, 0700 on 920907.
920908:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct.

 920911:  Applicant surrendered on board USS NIMITZ (CVN 68), at 0730 on 920911 (4 days).

920916:  Applicant to unauthorized absence, 0700 on 920916.
920923:  Applicant surrendered on board USS NIMITZ (CVN 68), at 0845 on 920923 (7 days).

920924:  DD Form 214: Applicant 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 19920924 by reason of misconduct due to a pattern of misconduct under other than 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).

 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 a member's conduct involves one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. T he Applicant was awarded nonjudicial punishment (NJP) on 19920129 for three violations of UCMJ Article 86, unauthorized absence. Subsequent to this NJP, the Applicant was administratively warned by issuance of a NAVPERS 1070/613 Counseling/Retention warning that further misconduct could result in administrative separation. On 19920319, the Applicant was awarded a second NJP for a violation of UCMJ Article 92, failure to obey order or regulation by wearing an earring aboard ship. The Applicant was given another retention warning following his second NJP. Finally, on 19920715, the Applicant was convicted by summary court-martial of two specifications of UCMJ Article 86, unauthorized absence and two specifications of UCMJ Article 87, missing movement. Under applicable regulations, the Applicant’s misconduct did in fact constitute a pattern of misconduct. 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 that his discharge should be upgraded because he was suffering from depression while on active duty. A mental condition will not automatically excuse a servicemember from legal liability for his misconduct. The Applicant must show a lack of mental responsibility by virtue of being unable to appreciate the nature and quality or the wrongfulness of his acts. The Applicant’s record contains no evidence to support the contention that he suffered from depression while on active duty. Based upon a lack of medical evidence substantiating the Applicant’s claim, the Board concluded that the discharge was proper and equitable as issued. 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. As of this time, the Applicant has not provided any post-service documentation for the Board to consider. 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, effective 15 Aug 91 until
04 Mar 93), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A 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 .

 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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