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NAVY | DRB | 2006_Navy | ND0600464
Original file (ND0600464.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-FN, USNR-R
Docket No. ND06-00464

Applicant’s Request
The application for discharge review was received on 20060208 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable . The Applicant requests a document ary record discharge review. The Applicant requested someone from the “Board Navy” as the representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Board does not provide legal counsel to applicants. The Applicant was advised that she could choose a counsel from a list provided. The Applicant responded and designated The American Legion as h er representative.


Decision

A documentary discharge review was conducted in Washington, D.C. on 200 70201 . 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 ization 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 - ISSUES AND DOCUMENTATION


Decisional Issues :

Propriety: Command Misconduct.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Discharge Authority from COMNAVPERSCOM, Millington, dtd August 4, 2003
 One page from Applicant’s service record

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: 19991115              Date of Discharge: 20040804

Length of Service (years, months, days):

          Active: 00 00 00
         Inactive: 0 4 0 8 2 0

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

Age at Entry: 35

Years Contracted: 8

Education Level: 12                                 AFQT: 40/ 36

Highest Rate: FN

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): Not Applicable.

* Not Available


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 :

020412:  Chief, Bureau of Medicine and Surgery, Department of the Navy, found that the Applicant was not physically qualified for retention in the Naval Reserve by reason of schizotypal personality disorder. The Applicant was directed to r equest discharge by reason of being not physically qualified or to request a review by the Physical Evaluation Board on the basis of available medical record s .
020626:  Non-Medical Assessment c ase of FN R_ D. M_ (Applicant). Commanding Officer’s Comments: FN M_ (Applicant) has been a marginal participant in her unit , and prone to displaying hostility to shipmates. She prefers to keep to herself and avoid contact with others. She has failed to make satisfactory progress in her coursework and exams. FN M_ has also failed to accept responsibility for these shortcomings, and has not completed remedial steps that were formally directed by her previous OIC. Her questionable recollection and interpretation of events sheds serious doubt upon her trustworthiness and ability to conduct official Navy affairs of any kind.

030212:  Bureau of Personnel, informed Applicant that the President, Physical Evaluation Board considered the physical condition of the Applicant and found the Applicant physical ly qualified for active duty in the USN Reserve.

 030228:  President, Physical Evaluation Board found FN M_ (Applicant) physically qualified for retention in the Naval Reserve.
031020:  Retention Warning: Advised of deficiency (An extensive and documented history of poor performance, reflecting an inability to follow the orders of superiors or cooperate with peers in the accomplishment of your duties ), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
040418:  Preliminary Inquiry into allegations of misconduct ICO FN R_ D. M_ (Applicant): There is credible evidence to support a finding that FN M_ has communicated threats to at least three service members on a number of occasions. In the most serious instances, FN M_ used words to the effect that she would “kill” fellow service members or “they could end up dead.” On a separate occasion, an uninvolved bystander heard FN M_ use disparaging language toward another service member. The service member the comments were directed at also considered them threatening. Based on my interviews, the victims did not appear to be biased against FN M_. FN M_ was advised of her Article 31B rights and offered an opportunity to make a statement. She declined.
0 40 427 :  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct commission of a serious offense.

040 503 :  Applicant advised of rights and having consult ed with counsel , elected to submit a written statement for consideration by separation authority , the right to obtain copies of the documents used to support the basis for the separation , and review by a GCMCA or higher.

0 40608 :  Commanding Officer, Naval and Marine Corps Reserve Center, Milwaukee , recommended the Applicant’s discharge by reason of misconduct due to the commission of a serious offense. Commanding Officer’s comments : “In Enclosure (1), FN M_ (Applicant) was previously counseled on 031020 for an extensive and documented history of poor performance, reflecting an inability to follow orders of superiors or cooperate with peers in the accomplishment of duties. Enclosure (2) is a report of a preliminary inquiry conducted into recent threatening remarks, FN M_ allegedly communicated against other service members. Enclosure (3) contains written statements provided during the course of the preliminary inquiry. Having reviewed Enclosures (2) and (3), I have determined that FN M_ committed the alleged offenses, by communicating unprompted and unwarranted death threats against a number of fellow sailors. The use of extremely threatening language on multiple occasions, without further aggravating circumstances, would merit action in this matter. When one combines, however, FN M_’ s previous erratic behavior with the disruptive and disturbing content of her threats, it becomes clear that she must be discharged from the Naval Reserve. Enclosure (4), Notification Procedures dtd 23 APR 04, was mailed to the member and returned with members elected rights. ”

040630:  Applicant’s statement responding to “ false charge of making threats to her fellow shipmates. ”

040803:  CNPC directed the Applicant's discharge with a general (under honorable conditions) character of service by reason of misconduct commission of a serious offense.
040804:  Applicant discharged with a characterization of general (under honorable conditions) by reason of misconduct due to the 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 20040804 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).

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 she was wronged by her command and that members of her command conspired to get her discharged from the Naval Reserve. The record, however, contains no evidence of any wrongdoing by the Applicant’s Commanding Officer or anyone else for that matter in the discharge process. 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 her issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support her contention that she was maltreated. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief denied.

The Applicant requests an upgrade in the characterization of her discharge. 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 a preliminary inquiry showing multiple violations of UCMJ Article 134 (communicating a threat). Communicating a threat is considered a serious offense for which a punitive discharge is authorized at courts martial. The Applicant’s conduct, which forms the primary basis for determining the character of his 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 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 134 (communicating a threat) .
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 .

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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