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NAVY | DRB | 2006_Navy | ND0600093
Original file (ND0600093.rtf) Auto-classification: Denied


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

ex-SKSN, USNR
Docket No. ND06-00093

Applicant’s Request
The application for discharge review was received on 20051020. 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 designated Milwaukee Veterans Service Office as the representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060726. 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 General (Under 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 and attached document/letter:

 “My discharge was unjustified and based on retaliation by my department head, Chief R_ because of my rebuttal statement to my June 1998 evaluation.

The events that let up to this action started in December 1997 when I was tardy 3-4 times that month. It snowed through out the month and my inexperience to drive in this type of weather was part to blame for my tardiness. Chief R_ put me on report and I went to see the executive officer. The executive officer stated next time I’m late I would go to Captain’s Mast.

In the months that followed Chief R_ would make poor comments about women in the military stating that they were “whiny” and all they would have to do is cry and they would get their way”. He would give several events as to why he felt this way and how he hated his previous command because he had to work with women. I found this offensive and spoke to SK2 C_ about this. Since SK2 C_ overhead such comments he advised to “just let it go”. Unknowingly I began to distance myself from Chief R_ only speaking with him regarding work related issues. Therefore, in May 1998 I was counseled stating I had an attitude problem and during this private meeting Chief R_ stated “you make me so mad I want to hit you but I’m controlling myself”, I didn’t want to seem “whiny” and this statement went unreported till September.

In June 1998 I received my semi-annual evaluation with a very low score. I summated a rebuttal. After Chief R_ read my rebutta1the tension increased between us.

On July 2, 1998 I overslept and was an hour and half late to work. Even though I have not been late in over six months Chief R_ put me on report. At Captain’s Mast I was awarded reduction in rank, suspended for six months.
On July 21,1998 I was rear ended and pushed onto another vehicle which hit me as well. This accident left me with neck and back pain. My doctor prescribed Vicodin, a pain killer which made me drowsy. After taking these pills for two weeks I was late twice: 1. Ten minutes 2. One minute. After the second tardy Chief R_ threaten to put me on report. I apologized for my tardiness and asked if he can grant me some leeway, if I should be late I would make up the loss time after working hours.. I explained that it was difficult to be alert enough to drive work after taking this medication and hoped not to be on this medication for very long. He would not agree to the leeway or compromise on anything. Fearing for my safety I sought advise from Command Master Chief J_, he suggested I take convalescent leave. This leave was approved by medical. Then, Chief R_ agreed to the original leeway only after I told him I was going to take leave.

I didn’t take advantage of this leeway until August 14, 1998 when I awoke with severe back pain. I called my LPO SK1 S_ at about 6:45am and advised I was going to medical and wouldn’t make it to physical training. I was in remedial PT, failed the weight. The week prior I was on light duty but refused it for the week of August 10 th - 14 th determined to exercise my back and prepare for the PRT. On this morning I took Vicodin and waited till my pain lessen enough to drive to work. I arrived to work at 8:05am and was immediately asked by Chief R_ if I went to sick call. I said “no” and was about to tell him why but I don’t think he heard me since he was speaking with Jane, a civilian. After she left I was asked again and again I said “no”. Chief R_ left the office for an hour or so and when he returned he asked “so you didn’t go to sick call?” I was thinking how many times is he going to ask and responded with a “yes”, meaning that was correct I didn’t go. He then wanted to know the doctor that I spoke to and I figured he thought I went to sick call I corrected him and said “no I didn’t go to sick call.” He informed me that he was putting me on report for lying to him.

My Captain’s Mast was on September 14, 1998 and I tried to explain that it was a misunderstanding but unfortunately it was my word against Chief R_’s. Thus, I awarded a reduction in rank, forty-five days extra duty, and recommended discharge from the navy [sic].

My discharge is unjust and I respectfully ask that it be changed from honorable under general to honorable.

Sincerely,

P_ H_(L_- G_)(Applicant) ”

Additional issues submitted by Applicant’s representative:

 “ The Applicant in the case Mrs L_(Applicant) was separated from the united navy on December 1 1998. with a General under Honorable Condition s general discharge for completion of active service separated Code GKA) Re: Entry Code RE-4.

The Applicant come now before the thr Board to present the following issues of property, matter of Equity, to be considered by the Board on the issues of the Applicants request to upgrade her character of military

Although the Applicant acquiesced in the administrative discharge process the Applicant was in a Car Injury, and she was taken Medication for said Injury and Head Injury. Applicant, she should have received a Honorable Discharge because she competed her tour of duties,
The Applicant received the National Defense Service Medal, and “Meritoriuos Unit Commendation “Letter of Commendation.

In conclusion give the factors in presented by the Applicant as well honest and faithful service render by the Applicant to Us [sic] Navy during the Forth Eight Months (48). Of active military.

The Applicant is working and has been continuosly active in her community. We feel upgrade of the Applicant”s General Under Honorable Conditions Discharge Separation GKA” RE-4 Reentry Code, separation is warranted and request the Applicant Upgrade to a Honorable Discharge.

J_ L. B_(Applicant)
For Applicant ”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Evaluation Report and Counseling Record, period ending June 15, 1998
Applicant evaluation rebuttal statement, dtd June 26, 1998 (3 pages)
Voluntary statement from SKC (SW/AW) D_ A. R_, dtd September 1, 1998 (2 pages)
Character Reference ltr from J_ A. F_, dtd May 25, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19941116             Date of Discharge: 19981201

 Length of Service (years, months, days):

         Active: 04 00 03
         Inactive: 00 00 13

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

 Age at Entry: 22

 Years Contracted: 8 (4 year active duty, 11 month extension)

 Education Level: 12                                 AFQT: 71

 Highest Rate: SK3

* Final Enlisted Performance Evaluation Averages:

Performance: 3.0 (1)                       Behavior: 1.0 (1)                 OTA: 1 .86

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Meritorious Unit Commendation, Letter of Commendation
*Extracted from supporting documents submitted by the Applicant.


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

GENERAL (UNDER HONORABLE CONDITIONS)/ PATTERN OF MISCONDUCT, authority: MILPERSMAN, Article 1910-140 (formerly 3630600).
Chronological Listing of Significant Service Events :

941114:  Pre-service waiver for drugs granted.

941129:  Commenced active duty for a period of 48 months.
980716:  NJP. No further information found in service record. [Extracted from NAVPERS 1070/607.]
980914:  Reduction in pay grade awarded at NJP on 980721 vacated due to continued misconduct.

 981201:  DD Form 214: Applicant discharged with a general (under honorable conditions) by reason of misconduct due to a pattern of misconduct, authority: MILPERSMAN, Article 1910-140.
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 19981201 by reason of misconduct due to a pattern of misconduct (A) 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 (Band C). The Board presumed regularity in the conduct of governmental affairs (D).

The Applicant stated “My discharge was unjustified and based on retaliation by my department head, Chief R_ because of my rebuttal statement to my June 1998 evaluation”. 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, credible and corroborating evidence to support her issue. There is no evidence in the record, nor has the Applicant produced sufficient evidence, to support the contention that her department head created a hostile or retaliatory working environment before and after the June 1998 evaluation. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief denied.

The Applicant requests an upgrade of her discharge characterization to honorable.
 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. The Applicant’s service was marred by two nonjudicial punishment proceedings and a reduction in rank to E3. 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’s representative requests an upgrade of her RE-4 code. Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, 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.






 The following is provided for the edification of the Applicant. Normally, 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, and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient 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 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - 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, 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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