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NAVY | DRB | 2005_Navy | ND0501374
Original file (ND0501374.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-FCSN (SW), USN
Docket No. ND05-01374

Applicant’s Request
The application for discharge review was received on 20050818. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing discharge review before the Board in the Washington National Capital Region. The Applicant designated American Legion as the 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 20060810. 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 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 document/letter:

“The type of discharge received was unjust for the offense that happened. During service, evaluations were good and with no problems while on duty. Due to my depression while on active duty, I was having difficulty with my command. I was due to be discharged for a medical condition; however, the Captains Mast stated I would not be discharge and receive a reduction in pay. The doctor told me to request a physical evaluation board and be discharged from service. The discharge was at my request and the Captain of the USS McFaul gave me a General discharge. I would not have agreed to this if I knew the consequences of what was happening. The discharge should have been honorable. Because of the circumstances in my life, I believe I should not have had a general discharge. The disicharge should be honorable as I was a model sailor during service except for the time I was diagnosed depression.”

 August 12, 2005

SUBJECT:         Request for review of proposed discharge status from United States Navy To Whom It May Concern,

I wish to request a review of my discharge status from the United States Navy, based on my military personnel file and additional documentation submitted by me. It is my understanding that any issue submitted by me will be considered in the review of my unjust discharge as a basis for upgrading my discharge from General/Under Honorable Conditions to an Honorable. I make the foregoing statements as part of my request with full knowledge of the penalties involved for willfully making a false statement.

The following is a brief summary of my proudest accomplishments during my service in the United States Navy.

EMPLOYMENT
-        FC ‘A’ School at the Naval Training Center in Great Lakes from July 1999 through February 2000.

-        FC ‘C’ School at the AEGIS Naval Surface Warfare Center Dahlgren Division from February 2000 through October 2000.

-        FCS/ORTS Technician in the Combat Systems Department on the USS Cowpens (CG-63) Deployed in Western Pacific Ocean from November 2000 through October 2003 and on the USS McFaul (DDG 74) from November 2003 through March 2004.


PRIMARY DUTIES and RECOGNITION FOR SUCH DUTIES:
-        AEGIS Fire Controman Technician. Operated and performed preventative maintenance on AEGIS MK 99 FCS, Operational Readiness Test System and 400 HZ Static Converters.

-        Lead and participated in countless repairs of Combat Systems equipment, including major repairs to the 2SF SWBD after suffering a Class Charlie fire.
 o        I was recognized for my expeditious response and efforts that maximized Cowpens Combat Effectiveness during multiple national tasked contingencies including Operation Iraqi Freedom. I have been noted for taking great ownership for tasks in which I am responsible.
SECONDARY DUTIES and RECOGNITION FOR SUCH DUTIES:
-        Cross Trained in Tomahawk Weapon Systems and became an Advanced Tomahawk Weapon System (ATWCS) Data Base Manager (DBM) and Engagement Planner for Cowpens in the first ever Expeditionary Strike Group during Operation South Watch and Operation Iraqi Freedom.
 o        Cowpens was tasked with the first launch from the North Arabian Gulf, thus starting OIF.

 -        Engagement Planner for USS McFaul prior to the current scheduled deployment.

COLLATERAL DUTIES and RECOGNITION FOR SUCH DUTIES:
-        On the USS Cowpens I was the Command Assistant Physical Readiness Test (PRT) Coordinator and Department Coordinator from January 2000 through September 2003.
 o        1 was recognized for my dedication that led Cowpens to be one of the most physically fit crews in 7th Fleet.
o        I have scored an Outstanding High on every PRT, even after little recovery time from foot surgery.
o        Awarded a Flag Letter of Commendation (COMCARGRU5) for serving as Assistant PRT Coordinator during OSW and OIF. I spent my free time working with the 62 personnel who were not able to previously pass the PRT and or body fat requirements. I designed custom workouts, nutrition recommendations and future goals. I referred them to the Wellness Center where they were profiled with blood work and body fat compositions with certified personal trainers. My determination paid off when 54 out of the 62 personnel passed the PRT and did so with confidence.
-        As CF Divisional Training Petty Officer from January 2002 through September 2003 I lead the division through an entire IDTC, diligently tracking the division’s qualifications and monitoring personnel training records.

-        As Departmental COMREL Petty Officer from July 2002 through September 2003 I served as Community Relations Project leader for Combat Systems, working closely with the command Chaplain. During this time I worked on over a dozen projects, some of which included:
 o        Tonghae, S. Korea Hurricane Distaster restoration,
o        Mumbai India Earthquake disaster cleanup,
o        Malaysia, Japan, Saipan and Thailand - Goodwill orphanage visits.
-        Worked as the Assistant Work Center Supervisor from December 2001 through September 2003 over an 8 Man work center, which included two Second Classes. During this time I took over the CFO2 multiple times in the absence of the WCS, for months at a time (August-Nov 2002) during Ships Repair Availability.

-        As the Gauge Calibration Petty Officer I supported not only all of Combat Systems, but all departments as well, in the calibration of critical system gauges including preparations for
INSURV 2003.

-        I participated in the Ship’s Camera Crew by leading 4 personnel in the recording of footage including the first launch of OIF and the editing of the ship’s very first cruise DVD.

OTHER ACHIEVEMENTS and AWARDS:
-        I achieved the rate of Fire Controlman Second Class with only 4.5 years of service. The final multiple for the exam in which I advanced was 179, allowing me to be included in the 4% of Fire Controlman Third Classes that advanced to that level.

-        Recognized as most qualified Third Class onboard.

-        CSTT and DCTT during two training cycles.
I believe that my proposed discharge is inequitable because it is based on one isolated incident in 62 months of extraordinary military service with no other adverse action. During this time of dedicated service, I persevered despite the diagnosis of both my mother and father with terminal cancer. This and other extremely personal issues led to my emergency evacuation from the USS McFaul and diagnosis of Major Depressive disorder per my medical records (attached). I fully understand that my medical condition led to an isolated incident of behavior that was not congruent with my prior record of outstanding behavior and service to the military, however I hope that this will not lead to the renunciation of my long list of accomplishments over the last five years.

It is my goal upon discharge from the military to leverage my pre-military experience as an Emergency Medical Technician and my service to the United States Navy in the pursuit of a career in medicine with the use of my Montgomery G.I. Bill. It is extremely important for me to continue to meet and exceed my career goals with the same honor, courage and commitment in which I have demonstrated throughout my military service.

I feel that my technical expertise, professionalism and devotion to duty, reflects great credit upon myself and are in keeping with the highest tradition of the United States Navy. In my plea to you for review of my discharge and my request for the upgrade of my discharge status, I am willing to take any necessary measures to satisfy the United States Navy. If requested to do so, I will personally appear in a hearing before the Navy Discharge Review Board to make sworn statements and provide any other necessary information to complete the timely review and modification of my discharge from General/Under Honorable Conditions to an Honorable discharge.

I thank you in advance for your thoughtful consideration of all the information provided herein.

Very Respectfully,

K_ A. R_”


enclosure

Additional issues submitted by Applicant’s representative (American Legion):

 “Equity Issue: Based on our review of evidentiary record and on behalf of this former member, we request that the Board also consider provisions of SECNAVINST 5420.174D, Part V, Paragraph 503, as it pertains to post-service conduct, in assessing the merits of this application.

In accordance with Title 32, CFR, section 724.116 and SECNVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue(s) and following statement in supplement to this Applicant’s petition.

Essentially, as noted on DD Form 293, this Applicant is requesting that her discharge be upgraded because it does not represent her true character. She attributes her misconduct to a mental disorder and contends that she should not be punished further for her mental health condition. In addition to copies of her service record, s he has submitted 13 pages of additional documentation attesting to her good post-service character.

This former member earned a National Defense Service Medal, Humanitarian Service Medal, Overseas Service Ribbon (3), Sea Service Ribbon (3), Meritorious Unit Commendation, Armed Forces Expeditionary Medal, Flag Letter of Commendation (2), 1 st Good Conduct Medal, and Enlisted Surface Warfare Specialist. She was awarded NJP on 040329 for VUCMJ, Article 92 (failure to obey order). On 040116, she was awarded NJP for VUCMJ, Article 121 (larceny of government property). This Applicant was discharged General (Under Honorable Conditions) for misconduct as authorized by MPM 1910-142.

The American Legion’s express purpose in providing this statement, and any other submittals or opinions of record, is to aid the applicant in resolving any improprieties or inequities in the character and basis for discharge. Moreover, we rest assured that the Naval Discharge Review Board’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724; SECNAVINST 5420.174C, enclosure (1).

This case is now respectfully submitted to the Board for deliberation and disposition.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Service Related Documents (14 pgs)
Letter of Recommendation dtd 26 April 2003
Reference Letter from D.A. H_, LTJG USNR, dtd May 1, 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19990408 – 19990510               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19990511             Date of Discharge: 20040629

 Length of Service (years, months, days):

         Active: 05 01 19
         Inactive: None

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

 Age at Entry: 20

 Years Contracted: 4 (24-month extension)

 Education Level: 12                                 AFQT: NFIR

 Highest Rate: FC3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.6 (5)              Behavior: 3.8 (6)                 OTA: 3. 62

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Humanitarian Service Medal, Overseas Service Ribbon (3), Sea Service Deployment Ribbon (3), Meritorious Unit Commendation, Armed Forces Expeditionary Medal, Flag Letter of Commendation (2), 1 st Good Conduct Medal, Enlisted Surface Warfare Specialist.


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 :

040110:  Incident Report: Larceny of government property (shoplifting Navy Exchange). [Extracted from service record].

040119:  NJP for violation of UCMJ, Article 121: Larceny of government property (shoplifting).
         Award: Forfeiture of ½ pay per month for 2 months, restriction and extra duty for 30 days, reduction to E-3. No indication of appeal in the record [Extracted from service record].
040323:  Record of Counseling: Performance and responsibilities [Extracted from service record].

040329:  NJP for violation of UCMJ, Article 92: (2 specs), Failure to obey order or regulation.
 Award: Forfeiture of $706.00 pay per month for 2 months, restriction to USS MCFAUL (DDG 74) for 45 days, extra duty for 45 days, reduction in rate (suspended). No indication of appeal in the record [Extracted from service record].

 040629:  DD Form 214: Applicant discharged general (under honorable condition) by reason of misconduct commission of a serious offense per MILPERSMAN 1910-142.

Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20040629 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).

 The NDRB advises the applicant that her service record is missing the administrative discharge package. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support h er issue. In the Applicant’s case, the record showed two documented nonjudicial punishments for misconduct . I n the absence of a complete discharge package and without credible and substantial evidence to refute the Board’s presumption , the Board presumed that the Applicant was properly notified of her Commanding Officer’s intent to administratively process her for separation , that the she was afforded all rights which she elected at notification and that the Applicant’s discharge was directed by proper authority.

The Applicant requests an upgrade to her discharge characterization to honorable. The Applicant contends that her discharge was inequitable because it was based on one isolated incident in 62 months of extraordinary military service with no other adverse action. 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 when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. Two nonjudicial punishment proceedings for violations of UCMJ Article 92 (failure to obey order or regulation) and Article 121(larceny) marred t he Applicant’s service . Violations of Article 92 and 121 are considered serious offenses and a punitive discharge is authorized at a special or general court-martial. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy and falls far short of that required for an upgrade of her characterization of service. Relief is not warranted.
The Applicant states, “It is my goal upon discharge from the military to leverage my pre-military experience as an Emergency Medical Technician and my service to the United States Navy in the pursuit of a career in medicine with the use of my Montgomery G.I. Bill”. 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 contends through her representative that her discharge should be upgraded because it does not represent her true character and attributes her misconduct to a mental disorder. The Applicant further contends that she was due to be discharged for a medical condition but was denied that opportunity at captain’s mast. The Applicant feels she should not be punished further for her mental health condition. The NDRB advises the Applicant, 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, the record is devoid of evidence that the Applicant was not responsible for her conduct or that she should not be held accountable for her action s . The Applicant’s administrative discharge for misconduct precluded discharge for medical reasons. Relief denied.

For the edification of the Applicant, 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 the service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct, which precipitated the discharge. 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), re-issued October 2002, effective 22 Aug 02 until 25 April 2005, 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 92 (failure to obey an order or regulation) and 121 (Larceny).

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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