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NAVY | DRB | 2005_Navy | ND0501560
Original file (ND0501560.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. ND05-01560

Applicant’s Request
The application for discharge review was received on 20050922. 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 20060717. 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 Uncharacterized by reason of defective enlistment and induction due to erroneous entry (other) .

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

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

“I was wrongly judged by my superiors and others. Also not given a chance to learn by and from my mistake. But now I have to move on and except this wasn’t meant for move and me on to a different goal in life. Now I started to go to IVY TECHCOMMUNITY COLLEGE to study automotive tech. While working part time.”

“I know that what I did is fully wrong and should not say what I have said. The word I use was to hurt the one that was saying negative words by another shipmate. I said with out no thinking of what choice of words that I was choosing at the moment but now I fully realize what road it lead me down. The second incident I fully under stand fully what I did said on that was wrong and regret doing that. I was doing pretty well for recruit wise I pass most of my test but my athletic part but I was slowing improving on that. I did what was ask with out any gripes and I knew fully what I got my self in to and know that it’s not going to be a “cake walk” but I was there for change in life I wanted to be some body instead being a nobody from a small town in Indiana. I wanted to get better life than what I did and still have today. What I did not to many want to go thought all that for a better life they rather sell drugs and steal to think they have a better life. But it’s better till you mess up or get caught by the local law then back you go back to “crap vill” or “dead vill”. With this way its all legal and you get some good benefits from it to. One thing I can say about all this at lease I tried you can give me that at lease. I tried but failed but did I ?? I would like an Honorable code but I can settle with General/Under Honorable Conditions. If it please the Review Board. I don’t have much I life, little car and a simple life trying to break even like every one else. But try to do it a little better than them with what I got.

Yours truly,
G_ L. S_ (Applicant) [signed]”
Documentation
In addition to the service record, the following documentation, submitted by the Applicant, was considered:
Documents from Ivy Tech (3 pgs)
Elks USA, Moose Lodge, and American Legion Membership Cards
19 th Indiana Volunteer Infantry, Civil War Reenactors Roster Listing (2 pgs)
Applicant’s DD Form 214
Commanding Officer’s Report of Administrative Separation (2 pgs)
Administrative Separation Processing Notification Procedures (2 pgs)
Recruit Evaluation Unit Administrative Separation Recommendation (2 pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20040331 – 20040907               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20040908             Date of Discharge: 20041123

 Length of Service (years, months, days):

         Active: 00 02 16
         Inactive: None

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

 Age at Entry: 21

 Years Contracted: 4

Education Level: 12                                 AFQT: 40

 Highest Rate: SR

 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.
* Not Available


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

UNCHARACTERIZED /ERRONEOUS ENTRY (OTHER), authority: NAVMILPERSMAN, Article 1910-130 (formerly Article 3620280).

Chronological Listing of Significant Service Events :

041027:  NJP for violation of UCMJ, Article 92: SR G_ L. S_ on or about 19 September 2004 failed to obey a lawful order by wrongfully using a racially derogatory statement.
         Award: Forfeiture of $552.00 pay per month for 1 month. No indication of appeal in the record.

041027:  Retention Warning: Advised of deficiency (CO’s NJP of 27 October 2004 for VUMCJ, Article 92, violation of a lawful written order), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 041102:  Medical evaluation by Recruit Evaluation Unit, Great Lake, IL:
          Applicant diagnosed with a Personality Disorder, NOS, 301.9, EPTS.
         Recommendation: Entry level separation due to disqualifying psychiatric condition affecting SR’s potential for performance of expected duties and responsibilities while on active duty. SR was educated regarding this condition and was encouraged to seek treatment for this condition(s) upon separation. SR is suitable to report to Separation Division.
041105:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of defective enlistments and inductions-erroneous enlistment.

041105:  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.
041112:  Commanding Officer, Recruit Training Command, directed the Applicant’s discharge with an uncharacterized service by reason of defective enlistments and inductions erroneous enlistment. Commanding Officer’s comments: “As evidenced by the listed enclosures, an erroneous enlistment has occurred. SR S_’s (Applicant) psychiatric conditions affects his potential for performance of expected duties and responsibilities while on active duty and poses a risk if he is retained in the naval service.”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20041123 by reason of defective enlistment and induction due to erroneous enlistment (A) with a service characterization of uncharacterized. 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 Applicant desires an upgrade in order to move on with his life. By regulation, members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an uncharacterized or entry-level separation characterization of service. Unless there were unusual circumstances regarding a service member’s performance or conduct that would merit another characterization, an uncharacterized discharge is generally considered the most appropriate characterization of a member’s service. The Applicant’s service record contains one nonjudicial punishment proceedings on 20041027 for violation of UCMJ Article 92 (Failure to obey lawful order) and a retention warning entry on 20041027. V iolation of Article 92 is considered a serious offense because 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. Typic ally, the characterization of service for members involved in misconduct due to commission of a serious offense is under other than honorable conditions. The Applicant’s conduct, which forms the primary basis for determining the character of service, falls well below that required for an upgrade in characterization of service. Relief denied.

The Applicant should be aware that, with respect to nonservice-related administrative matters, i.e., VA benefits, educational pursuits, and especially civilian employment, an uncharacterized separation is considered the equivalent of an honorable or general (under honorable conditions) discharge.

While 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 service, the Board 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. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. The Applicant submitted documents from Ivy Tech, copies of three membership cards, and a Civil War Re-enactors roster for consideration. The Applicant’s efforts need to be more encompassing to include verifiable employment records, documented community service, and certification of non-involvement with civil authorities. At this time, there is not sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in the characterization of discharge. And so, no relief is granted on this basis.

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 post-service accomplishments or any other evidence related to the discharge at that time. Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 02 until 19 June 2005, Article 1910-130 (formerly 3620280), SEPARATION BY REASON OF DEFECTIVE ENLISTMENTS AND INDUCTIONS - ERRONEOUS ENLISTMENT.
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 .




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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