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NAVY | DRB | 2005_Navy | ND0501307
Original file (ND0501307.rtf) Auto-classification: Denied


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

ex-STG3, USN
Docket No. ND05-01307

Applicant’s Request
The application for discharge review was received on 20050802. 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 20060517. 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 shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to commission of serious offense - absent without leave - 30 days or more .
PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“My discharge is improper because it was based on one isolated incident in 46 months of service, while on medical hold at SIMA on N.O.B. Norfolk. My status at the time of this incident was awaiting discharge for medical reasons. The incident that sent me to Captains Mast was unauthorized absence, which was true for a period of one week due to marital problems. I was placed on restriction and ½ month’s pay was taken from me and that was it. After serving my restriction time I was scheduled for a medical discharge (Honorable) yet I was given a discharge of other than Honorable. Because it was the lesser of the two discharges. At the time I could not believe that I was given this discharge and did not know what to do about it. I was never told and there was never anything said to me that there was anything but an Honorable Discharge awaiting me. This O.T.H. discharge status has been following me for almost six years now and my life, financially and career path is limited because of my discharge status. I am respectfully requesting that my discharge be upgraded to Honorable for the sake of my future. I feel that I served my country to the best of my ability and have no regrets about my time served. I want to thank the Board for their time and consideration in this matter.
Thank you.”

 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: USAFR (DEP)    19920709 - 19920731      ELS
         Inactive: USNR (DEP)     19960731 - 19960814      COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19960815             Date of Discharge: 20001229

 Length of Service (years, months, days):

         Active: 04 04 15 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 60 days*
         Confinement:              None

 Age at Entry: 22

 Years Contracted: 4 (24 month extension)

 Education Level: 12                                 AFQT: 70

 Highest Rate: STG3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NA**                                   Behavior: NA**            OTA: NA**

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): None
* Extracted from Medical Record entry date 000908.
** Not Available


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

UNDER OTHER THAN HONORABLE CONDITIONS/ MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605). [Note BUPERSINST 1900.8 list the authority as 3630600 instead of 3630605]
 .
Chronological Listing of Significant Service Events :

960731:  Pre-service waiver for Air Force Boot Camp discharge granted.

970716:  NJP for violation of UCMJ, Article 80 (Attempts)
         Date of offense: 21 June 1997
         Award: Forfeiture of $300 per month for 2 months, restriction and extra duty for 30 days. No indication of appeal in the record.

971030:  NJP for violation of UCMJ, Article 86 (3 specs):
         Specification 1: In that Sonar Technician (Surface) Seaman Apprentice J_ P_ T_(Applicant), USN, FLEASWTRACEN, San Diego, California on active duty, did on or about 02 September 1997, absent himself from his appointed place of duty, to wit: Mandatory extra study at FLEASWTRACEN San Diego California.
         Specification 2: In that Sonar Technician (Surface) Seaman Apprentice J_ P_ T_(Applicant), USN, FLEASWTRACEN, San Diego, CA on active duty, did on or about 03 September 1997, absent himself from his appointed place of duty, to wit: Mandatory extra study at FLEASWTRACEN San Diego, CA.
         Specification 3: In that Sonar Technician (Surface) Seaman Apprentice J_ P_ T_(Applicant), USN, FLEASWTRACEN, San Diego, California on active duty, did on or about 04 September 1997, absent himself fm his appointed place of duty to wit: Mandatory extra duty at FLEASWTRACEN San Diego, CA.
 Violation of UCMJ, Article 107: False official statement.
Specification: In that Sonar Technician (Surface) Seaman Apprentice J_ P_ T_(Applicant), USN, FLEASWTRACEN, San Diego, CA, on active duty, did on or about 05 September 1997, with intent to deceive, make an official statement, to wit: that he had attended mandatory night study, which statement was totally false and was then known by STGSA T_(Applicant) to be so false.
          Award: Forfeiture of $250 per month for 1 month, restriction and extra duty for 30 days. No indication of appeal in the record.



990311:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
 Violation of UCMJ, Article 134: Drunkenness-incapacitation for performance of duties through prior wrongful indulgence in intoxicating liquor or any drug.
          Award: Forfeiture of $604 per month for 2 months (1 months suspended for 6 months), restriction and extra duty for 45 days, reduction to E-3 (suspended for 6 months). No indication of appeal in the record.

000310:  Report of Medical Board:
         Diagnosis: Chronic regional pain syndrome involving the superficial and deep peroneal nerves.
         Plan: The board concurs in the physical findings and diagnosis noted above.
         Recommendation: It is the opinion of the Board that the patient is not fit for full duty, but is fit for limited duty.
         It is recommended that patient be returned to an additional period of eight months of limited duty, ashore. During this time of limited duty, patient to undergo EMG consult. Patient will also undergo a Pain Clinic Consult. Patient may need further surgery. Patient is not to be given duty on board ship or overseas. Patient should really be given a desk job, and the patient needs to continue staying in an area where there is potential for Orthopedic and Physical Therapy care.
000908:  Psychiatric Clinic, Naval Medical Center
          AXIS I: Adjustment disorder with mixed disturbance of emotion and conduct.
         AXIS II: No Dx.
 AXIS III: S/P right leg fracture.
AXIS IV: Military, family.
          Recommendation: (1) Recommend administrative separation per MILPERSMAN 1910-120 based on an adjustment disorder.
         (2) Recommend counseling with Navy Family Services or Chaplain.
         (3) Pt to report to Command DAPA for scheduling of Level .5 ETOH tx.
         (4) Follow up with primary doctor.
         (5) Follow up with psychiatry/Dr D_ as needed.
         (6) Case discussed with LCDR C_ (Staff) who concurs.
000919:  Psychiatry:
 AXIS I: Adjustment disorder with mixed disturbance of emotion and conduct.
          AXIS II: None.
 AXIS III: S/P right leg fracture.
AXIS IV: Occupational/medical stressors.
AXIS V: 70.
          Recommendation: (1) Recommend patient for administrative separation as per MILPERSMAN 1910-120 based on an adjustment disorder.
         (2) Recommend patient attend the outpatient crisis intervention program in NMCP Psychiatry. Patient can report to Ward 5G between 8:30-11 for a screeening.
         (3) Recommend patient follow up at the Navy Family Service Center for individual counseling.
         (4) Follow up with Dr. D_ as needed.
         (5) Case discussed with Dr E) (Staff Psychiatrist), who concurs.
         (6) Patient to return to hospital if suicidal or homicidal.
         (7) Patient concurs with plan.
001229:  DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to commission of a serious offense - absence without leave - 30 days or more, authority: NAVMILPERSMAN, Article 1910-142.

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 20001229 by reason of misconduct due to commission of serious offense - absent without leave - 30 days or more (A and B) with a service characterization of under other than honorable conditions. 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 (C and D). The Board presumed regularity in the conduct of governmental affairs (E).

 The NDRB advises the applicant that his service record is missing elements of the administrative discharge package. In the Applicant’s case, the Board presumed regularity in the conduct of governmental affairs and that the Applicant’s discharge was regular in all respects.

The Applicant states his discharge is improper because it is based on one isolated incident in 46 months of service. The NDRB advises the Applicant that despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. The Applicant’s service record is marred by two nonjudicial punishments (NJP) for violations of the UCMJ for Article 80 (attempts), Article 86 (4 specs: unauthorized absence), Article 107 (false official statement), and Article 134 (drunkenness and incapacitation for performance of duties). Violations of Articles 86 and 107 are considered serious offenses and typically warrant a punitive discharge if adjudged at a special or general court-martial. The summary of service clearly documents that misconduct was the reason the Applicant was discharged. Relief not warranted.

The Applicant contends he was “scheduled for a medical discharge (Honorable) yet was given a discharge of other than Honorable”. The Board advises the Applicant that SECNAVINST 1850.4 stipulates that separation for misconduct takes precedence over potential separations for other reasons. Whenever a member is being processed for a medical discharge, and subsequently is processed for an administrative involuntary separation for misconduct, the medical discharge is suspended pending the outcome of the non-disability proceedings. In the Applicant's case, his administrative discharge for misconduct precluded discharge for medical reasons.

The Applicant States “This O.T.H. discharge status has been following me for almost six years now and my life, financially and career path is limited because of my discharge status.” 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 or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.
Additionally, 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, credible evidence of a substance free lifestyle 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 additional evidence related to this 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 30, effective
30 Aug 00 until 24 Jan 01, 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 86 (unauthorized absence) and Article 107 (false official statement).
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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