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

FOR OFFICIAL USE ONLY

ex-SR, USNR
Docket No. ND06-00456

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 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 20061206.  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 Under Other Than Honorable Conditions by reason of misconduct due to a pattern of misconduct.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues:

Equity: Medical problems.

Equity: Benefits.

Documents submitted by the Applicant:

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

Period of Service Under Review:

Date of Enlistment:  19920123		Date of Discharge:  19930922

Length of Service (years, months, days):

	Active:    01  06  12  (Does not exclude lost time.)
	Inactive:  00  01  18

Time Lost During This Period (days):  

	Unauthorized absence:  21 days
	Confinement:		  None

Age at Entry:  18

Years Contracted:  8 (2 active duty)

Education Level:  12				AFQT:  47

Highest Rate:  SA

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/PATTERN OF MISCONDUCT, authority:  MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events: 

920310:	Commenced active duty for a period of 24 months.

920827:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful general order.
	Award:  Forfeiture of $392.00 per month for 1 month, restriction and extra duty for 20 days.  No indication of appeal in the record.

921024:	NJP for violation of UCMJ, Article 92: Failure to obey a general written order.
	Award:  Restriction and extra duty for 20 days.  No indication of appeal in the record.

921026:	Retention Warning:  Advised of deficiency (violation of UCMJ, Article 92 (920827) and Article 92 (921026)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

921202:	Medical Entry, USS NITRO: Applicant complained of chronic ear pain and infection for 3 weeks.  Assessment: Unresolving otitis media and Eustachian tube disorder, otitis media unspecified.  Plan: Refer to medical officer with appointment, Cipro and Sudafed.  Return to full duty.

921204:	Medical Entry: Applicant reported to sick call for consult for left otitis media, chronic intermittent distorted noise left ear for last six months.  Assessment: Distorted hearing left ear. Rule out hearing loss.  Plan: ENT referral.

930125:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
	Award:  Forfeiture of $456.00 per month for 1 month (suspended for 6 months), correctional custody for 30 days.  No indication of appeal in the record.

930127:	Applicant to unauthorized absence at 1800.  Declared deserter.

930217:	Applicant from unauthorized absence at 1800 (21 days/surrendered).

930219:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
Violation of UCMJ, Article 87: Missing ships movement.
	Award:  Forfeiture of $407.00 per month for 1 month, restriction and extra duties for 20 days, administrative separation.  No indication of appeal in the record.

930220:	Retention warning.  [Extracted from CO message dtd 930901.]

930225:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to pattern of misconduct and commission of a serious offense as evidenced by four nonjudicial punishments under the UCMJ in your current enlistment.

930225:	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.

930309:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense.  Commanding Officer’s comments:  “SR A_’s (Applicant) performance has been consistently substandard since reporting to USS NITRO.  He has been an administrative burden to his division and the command due to his disregard for discipline and good order.  He has failed to respond to repeated counseling by his division officer, department hear and executive officer.  I am recommending an administrative separation with the characterization of Other Than Honorable.”

930427:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of pattern of misconduct.

930820:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
Violation of UCMJ, Article 92 (3 specifications): Failure to obey a lawful order.
	Award:  Forfeiture of $407.00 per month for 2 months, restriction and extra duties for 45 days, reduction to SR.  No indication of appeal in the record.

930824:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to pattern of misconduct as evidenced by five nonjudicial punishments within current enlistment.

930828:	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.

930901:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  Commanding Officer’s comments:  “SR A_’s (Applicant) has been an administrative burden and disciplinary problem since coming to this command.  He has been counseled by his chain of command including the Command Master Chief and other crewmembers repeatedly both prior to his NJPs and after to no avail.  SR A_ was approved for administrative discharge but after further review I gave him a second chance.  He violated that page 13 with the captain’s mast of 930820.  I am recommending an Other Than Honorable discharge.”

930908:	BUPERS held action in abeyance pending verification of notification or admin board procedures.

930915:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930922 by reason of misconduct due to a pattern of misconduct (A) with a service characterization 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 proper and equitable (B and C).

Equity – Medical problems: The Applicant informs the Board that by “not being allowed to make medical appointments, along with, continuing problems with [his] ear caused behavioral problems.”

While the Applicant may feel that the underlying cause for his misconduct was his medical problems, the record clearly reflects his misconduct, which demonstrated he was unfit for further service.  The evidence of record shows:
•	Nonjudicial punishment proceedings on 19920827 for violation of UCMJ Article 92 Failure to obey order, regulation;
•	Nonjudicial punishment proceedings on 19921024 for violation of UCMJ Article 92 Failure to obey order, regulation;
•	Retention warning entry on 19921026 for deficiencies in performance and conduct concerning violation of UCMJ, Article 92 Failure to obey order, regulation;
•	Nonjudicial punishment proceedings on 19930125 for violation of UCMJ Article 86 Unauthorized absence;
•	Nonjudicial punishment proceedings on 19930219 for violation of UCMJ Article 86 Unauthorized absence and Article 87 Missing movement;
•	Retention warning entry on 19930220; and
•	Nonjudicial punishment proceedings on 19930820 for violation of UCMJ Article 86 Unauthorized absence and Article 92 Failure to obey order, regulation.
The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls well below that required for an honorable characterization of service.

The Board did note the Applicant’s medical problems.  When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  The NDRB generally does not consider the circumstances surrounding the Applicant’s stated condition, the implied incorrect diagnosis, nor the medical treatment given to the Applicant to be of sufficient nature to excuse the Applicant’s misconduct.  In fact, the NDRB sees no connection between the Applicant’s misconduct and his medical condition.  Relief denied.

Equity – Benefits: The Applicant desires an upgrade to “apply for schooling.” 

The Applicant is advised that 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 or enhancing employment and educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Since these issues do not serve to provide a foundation upon which the Board can grant relief, relief on this basis 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 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.  Naval Military Personnel Manual, (NAVPERS 15560C, Change 5, effective 05 Mar 93 until 21 Jul 94), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A 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.

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