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NAVY | DRB | 2006_Navy | ND0600215
Original file (ND0600215.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-MMFN, USN
Docket No. ND06-00215

Applicant’s Request
The application for discharge review was received on 20051116. 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 “Medical.” 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 20060926 . 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 commission of a serious offense.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“All documents to support my case from Mar 1995 to Oct 1995 have been removed from my records. A cover up was done to remove all proof of my being assaulted and discharged while the offender was raised to officer status has been removed from my records . I have been refused all benefits since my discharge, I am unable to get an appointment to be seen in a VA hospital. I have continuous PTSD symptoms from the mentioned incident. The Navy refused to acknowledge what happened. My records have been doctored to remove proof of what happened.”
Applicant marked the box "I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION.” None were found.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Document Summary
Colorado West Mental Health Adult/Child Database, dtd May 1, 2003
Canyon View Center for Behavioral Health (Psychiatric Evaluation / Data Base, dtd May 12, 2003
3 Pages extracted from Applicant’s Service Records (3 pages) (2 copies)
Applicant’s DD Form 214 (Service 2) (3 Copies)
Ltr from Applicant, dtd December 5, 2005
Ltr from Applicant, dtd December 5, 2005 (2 pages) (not signed)
Ltr from Applicant addressed to Dept. of Veterans Affairs, dtd December 5, 2005 (not signed)
Ltr from Applicant addressed to One World Trade Center, dtd December 5, 2005 (not signed)
Undtd Ltr from Applicant, received May 17, 2006

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19950119 - 19950206      COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 19950207             Date of Discharge: 19951106

 Length of Service (years, months, days):

          Active: 00 0 8 27
         Inactive: None

 Time Lost During This Period (days):

         Unauthorized absence: None
         Confinement:              None

 Age at Entry: 19

 Years Contracted: 4 (24-month extension)

 Education Level: 12                                 AFQT: 99

 Highest Rate: MM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.5 (2)              Behavior: 3. 4 (2)                          OTA: 3 .40

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal


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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MILPERSMAN, Article 3630600.
Chronological Listing of Significant Service Events :

950208:  Retention Warning: Advised of deficiency (Based on fraudulent entry into naval service as evidenced by your failure to disclose required basic enlistment eligibility information , p arking 1/95 Butte, MT p aid $10 .), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning .

9505 1 1:  Medical evaluation by Active Duty Sick Call Branch Medical Clinic, NTC Orlando, Fl: Patient notes being sexually assaulted 2 weeks ago (April 21, 1995) by an fellow classmate. She mention having oral and vaginal intercourse. She denies any pelvic complaint. No discharge, fever, chills, ------ on pelvic or ------- hands/feet. No complaints. She notes last monthly period 05/04/95-normal. Patient note following currently with family center for same. She is ------ talking with--- same at NPS. Note dipphoria but feeling much better. -----that she ---been following with counsel.
          A: s/p sexual assault 21 April 95
         P: H/U, RPR drawn today
         2. GC/Chlamydia – vaginal and rectal
         3. F/U with me in 1 week for lab results sooner if any problems
         4. Continue w/ follow up with Family Service Center-appt in am
         5.Consult with psychology routine appt. next week I will schedule
          6. F/U with me anytime at BMC if any problems   

950914:  NJP for violation of UCMJ, Article 92:
         Specification: On or about 21 April 95, violate a lawful general regulation, to wit: NTCORLINST 1700.3D, DTD 10 Jan 94, by wrongfully consuming an alcoholic beverage while under the age of twenty-one.
         Award: Forfeiture of $100.00 pay per month for 2 months, restriction for 30 days, reduction to E-3 (suspended for 6 months). No indication of appeal in the record.

 Not Dated :       Retention Warning: Advised of deficiency (Violation UCMJ Article 92 drinking underage.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
950925:  Reduction in pay grade awarded at NJP on 950914 vacated due to continued misconduct.

950928:  NJP for violation of UCMJ, Article 92 (2 specs):
         Specification 1: Having knowledge of restriction orders DTD 14 Sept 95, on or about 21 Sept 95, failed to obey the same by wearing civilian clothes in a restricted status.
         Specification 2: Having knowledge of restriction orders DTD 14 Sept 95, on or about 21 Sept 95. Failed to obey the same by leaving NTC while in a restricted status.
         Award: Forfeiture of $50.00 pay per month for 2 months, CCU for 30 days (mitigated to restriction for 30 days). No indication of appeal in the record.
951002: *          BUPERS, directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct. [*Administrative error, date should be subsequent to 951025.]

951023 :   Applicant notified of intended recommendation for discharge, if separation is approved, the characterization of service may be Other Than Honorable by reason of misconduct due to commission of a serious offense as evidenced by all punishments under the UCMJ in your current enlistment.
951023:  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.
951025:  Commanding Officer, Enlisted Personnel, Naval Training Center, forwarded to BUPERS, recommending that the Applicant be discharged with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense. Commanding Officer’s comments: “Enclosures (1) through (6) are forwarded herewith. MMFN L_ (Applicant) has no potential for further naval service. Through her own actions she has shown a total disregard for rules and regulations and the spirit and intent of good order and discipline. However, after careful consideration of her offenses under the UCMJ, it is recommended that MMFN L_ (Applicant) be considered for a General Discharge.”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19951106 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 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).
In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. Specifically, Applicant alleged that her record was “doctored to remove proof of what happened,” and that her chain of command treated her unfairly after her assault. The record, however, contains no evidence of any wrongdoing by anyone in the discharge process. The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. The Applicant’s statements alone do not overcome the government’s presumption of regularity. As such, this Board presumed that Applicant’s discharge was regular in all respects. Relief denied.

The Applicant also requested a change of the narrative reason for her discharge to medical. The NDRB’s responsibilities are limited to determining whether a discharge is proper and equitable. The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for or character of discharge if such a change is warranted. There is no evidence of impropriety, inequity or procedural irregularities in the Applicant's discharge. The Applicant's misconduct is clearly documented. The summary of service clearly documents that misconduct due to commission of a serious offense was the reason the Applicant was discharged. She did not contest the discharge and acknowledged and waived her rights to an administrative discharge. The Applicant was afforded the appropriate due process during the processing of her case. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider her discharge proper and equitable. Relief denied.

The Applicant has requested an upgrade of her discharge 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 a retention warning and two nonjudicial punishment proceedings for violations of Articles 92 of the UCMJ. Violations of Article 92 are considered serious offenses for which a punitive discharge is authorized at courts 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 that she has symptoms of PTSD as a result of a sexual assault while in the military for which she has been denied medical benefits. 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. 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 9, effective
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 (violations of other lawful orders) .

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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