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NAVY | DRB | 2006_Navy | ND0600427
Original file (ND0600427.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-ENFR, USN
Docket No. ND06-00427

Applicant’s Request
The application for discharge review was received on 20060125 . 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 20061130 . After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, technical impropriety in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was unanimous that the discharge and the reason for discharge shall change to: GENERAL (UNDER HONORABLE CONDITIONS)/SECRETARIAL AUTHORITY, authority: MILPERSMAN 1910-164, Separation Code “JFF. ”


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“ First of all, I would like to state that there is no excuse for my actions back then and I would like to apologize to you for my actions during my time in service. I would like for the Board to concerned my Honorable Discharge from the Virginia Army National Guard, after the fact that I was discharged from the Navy with an OTH. Also the VA Army National Guard I went back onto Active Duty Army and was stationed at Fort Eustis, Virginia. Now I am presently stationed at Fort Knox, Kentucky. I have a total of 8 years in the military. Presently, I have a medial condition called Syncope (fainting or passing out) and from what I have been told as long as I have a OTH or worse, I will not be able to get my VA Loan or get any kind of VA help for disability. I would ask the Board not to punish me any long for my actions that I committed when I was young and stupid. I love the military and plan to do at least 2 more years to make it to 10 years of service to my country, if I am able too. Not only do I have Syncope I have had back surgery for a Herniated Disc on July 19, 2005 and will have my second on January 12, 2006 for second Herniated Disc and Degenerative Disc all on the same area. With both of these conditions I will be needing to apply for disability soon but will need to have my Navy discharge upgraded first to either Honorable or General under Honorable Conditions. Thank you for your time and patience .”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Physical Profile (4 pgs)
Radiology Department Physician’s Order Form
Honorable Discharge Certificate from Army National Guard, dtd September 18, 2001
 4 pages of Photo copied Disabled Parking Passes
CPNS Non-Invasive Lab Report from Memorial Hospital
Lab Report from Carilion Medical Associates Martinsville
 Report of Separation and Record of Service Army National Guard
 Applicant’s DD Form 214 (Member 4)
Physical Profile
Individual Sick Slip, dtd January 12, 2005
 Physical Profile Memorandum for Commander, dtd March 29, 2004
Physical Profile Memorandum for Commander, dtd January 22, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19940419 - 19940601       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19940602              Date of Discharge: 19960119

Length of Service (years, months, days):

          Active: 0 1 0 7 17 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):

         Unauthorized absence: 29 day s
         Confinement:              None day s

Age at Entry: 1 9

Years Contracted: 4

Education Level: 12                                 AFQT: 31

Highest Rate: ENFA

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): National Defense Service Medal.

* Not Available


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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 3630600.
Chronological Listing of Significant Service Events :

950405:  Applicant to unauthorized absence at 0800 on 950405.

 950428:  Applicant from unauthorized absence at 1210 on 950428 (23 days /apprehended by military authorities )

950429:  Applicant to unauthorized absence at 0730 on 950429.

 950501:  Applicant from unauthorized absence at 1235 on 950501 (2 days).
950517:  Discipline Officer, Naval Station, Norfolk Memorandum to Department Head, Port Operations, Naval Station, Norfolk disciplinary review in the case of Applicant B_ H_. Applicant charges pending NJP on 25 May 1995, as follows:
         Charge I: Violation UCMJ, Article 86 – Unauthorized Absence
Charge II: Violation UCMJ, Article 107 – False Official Statement

 950518:  Report and Disposition of Offenses: Violation of UCMJ Article 86 – unauthorized absence: 2 Specifications. Violation of UCMJ Article 107 – False Official Statement: 2 Specifications. Executive Officer referred Offenses to Captain’s Mast.

950518:  Applicant B_ H_ Acknowledged and signed being suspected of Violating UCMJ Article 86 – unauthorized absence and Article 107 – False Official Statement.

950518:  Captain’s Mast accused notification and election of rights signed by the Applicant . Applicant voluntarily, knowingly and intelligently gave up his right to talk to a lawyer. Applicant accepted nonjudicial punishment. Applicant did not desire to submit any written matters for consideration.
950525:  NJP for violation of UCMJ, Article 86: UA on or about 950405 to 950428 and on or about 950429 to 950501. Violation of Article 107 – False Official Statement (2 Specification) was dismissed.
         Award: Forfeiture of $300.00 pay per month for 2 months, restriction and extra duty for 14 days, reduction to E-1 (suspended for 3 months). No indication of appeal in the record.
950525:  Retention Warning: Advised of deficiency (CO’s NJP held on 950525 FOR VUCMJ Article 86-Unauthorized Absence (2 specs) and Article 107-False Official Statement (2 specs), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
950702:  Applicant to unauthorized absence at 0600 on 950702.

 950706:  Applicant from unauthorized absence at 0600 on 950706 (4 days).
950810:  Applicant to unauthorized absence at 0700 on 950810.
950828:  Applicant from unauthorized absence at 1240 on 950828 (17 days).
950831:  NJP for violation of UCMJ, Article 86 (4 specs): UA from on or about 0600, 950702 until on or about 0600, 950706; UA from on or about 0600, 950707 until on or about 0300, 950708; UA from on or about 0700, 950810 until on or about 1240, 950828; and on or about 950801, fail to go at time prescribed to his appointed place of duty.
 Award: Forfeiture of $150.00 pay per month for 2 months, restriction and extra duty for 30 days. No indication of appeal in the record.
950818:  Reduction in pay grade awarded at NJP on 950525 vacated due to continued misconduct.
950901 :  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason (s) of convenience of the government due to personality disorder as evidenced by your medical entries and misconduct due to commission of a serious offense as evidenced by your service record entries.

950901 :  Applicant advised of rights and having elected not to consult with counsel , elected to waive all rights except the right to submit statements on own behalf either verbally or in writing and to obtain copies of the documents used to support the basis for the separation.

950907:  Unauthorized absence from 950810 to 95082 8 reported in error.
950911 :  Commanding Officer, Naval Station, Norfolk recommended to Chief of Naval Personnel (PERS-8322) that Applicant be discharge d under other than honorable conditions by reason of convenience of the government due to personality disorder and misconduct due to commission of a serious offense . Commanding Officer’s comments : “ ENFR H_ (Applicant) is an average worker who unfortunately is not compatible with the military lifestyle. He simply wants out of the Navy. Dr. S_ recommended that ENFR H_ be administratively separated for unsuitability due to a disorder or character and behavior that interferes with his serving adequately in the U.S. Navy. Since reporting on board this command on 950321, ENFR H_ has been to mast twice for various periods of unauthorized absences. His immediate separation under Other Than Honorable conditions is recommended .”
951006 :  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct commission of a serious offense.

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 19960119 by reason of misconduct due to commission of a serious offense (A) 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 technically improper but equitable ( B and C ).

The NDRB noted a technical impropriety in the Applicant’s separation processing. The records indicate that separation was recommended by the Commanding Officer and directed by BUPERS for discharge under other than honorable conditions by reason of misconduct commission of a serious offense (COSO). No indication of (COSO) is evident in service record; the narrative reason should have been for pattern of misconduct. The Applicant was not found guilty of any serious offenses during the period of review. Partial relief based upon this impropriety is warranted.

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. An under other than honorable conditions 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 records. The Applicant’s service was marred by one retention warning, 2 nonjudicial punishment proceedings for violations of Articles 86 (unauthorized absence), and 107 (False official statements) of the UCMJ. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

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 . 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction . You should read Enclosure (5) of the Instruction 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 Instruction 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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