Author: CAP
Last saved by: shirley.robertson
Company: NCPB

Docket No. ND04-01372

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

ex-ATAA, USN
Docket No. ND04-01372

Applicant’s Request

The application for discharge review was received on 20040901  The Applicant requests the 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222.  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: GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I feel that my discharge was improper due to how it actually happened.  I was told by our command master chief after my incident and by my CO. at mast that I was being discharged
After they told me this I began to make arrangements for when I got out.  I rented a place in TN, with my wife and sold all my furniture there in Virginia Beach.  After I did all of this the board decided not to discharge me.  I was in shock I had already sold all my things got out of my lease in Virginia, got a place in TN.  All of which cost me about 8,000.00.  So my CO, pushed it back through again for me.  And got my Discharge.
I never wanted out in the first place, but after all that I was ready.”

Documentation

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

Applicant’s DD Form 214
Fifteen pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive: USNR (DEP)	990723 - 931004	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  931005		Date of Discharge:  021120

Length of Service (years, months, days):

	Active:    03  01  16
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (12 months extension)

Education Level:  10 GED		AFQT:  74

Highest Rate:  ATAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (2)	Behavior:  2.33 (3)		OTA:  2.67

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM

Days of Unauthorized Absence:  1

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

GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events:

000816:	NJP for violation of UCMJ, Article 86 (2 specs): Unauthorized absence, violation of UCMJ, Article 91: Disobedience.
	Dated of Offense:  000718, 000721, 000724.
	Award: Forfeiture of $563 per month for 1 month, restriction and extra duty for 14 days.  Forfeiture suspended for 6 months..  No indication of appeal in the record.

010814:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 112a:
	Specification: Wrongful possession of drug paraphernalia on 010803.
	Charge II: violation of the UCMJ, Article 134:
	Specification: Communicating a threat on 010810.
	Finding: to Charge I and II the specifications thereunder, guilty.
	Sentence: Forfeiture of $809.80, confinement for 30 days.
	
010814:	Applicant to confinement.

010904:	Applicant from confinement.

020423:	NJP for violation of UCMJ, Article 86: Unauthorized absence on 0645-0905, 020309, violation of UCMJ, Article 92: Failure to obey a lawful order on 020408, to wit: wrongfully not updating command recall number.
	Award: Forfeiture of $607.00 pay per month for 1 month, restriction and extra duty for 45 days.  Forfeiture suspended for 1 month.  No indication of appeal in the record.

020627:	NJP for violation of UCMJ, Article 86 (2 specs): (1) Absent from restriction muster on 1800-2010, 020529, (2) Absent from pier for the offload party on 1200, 020618-0700, 020619, violation of UCMJ, Article 92: Fail to obey a lawful order on 020529, to wit: to appear at restriction musters in proper uniform of the day, by wrongfully appearing in civilian clothes.
	Award: Reduction to ATAA.  No indication of appeal in the record.

020627:	Retention Warning: Advised of deficiency (Misconduct as evidenced by you CO’s NJP on 020627.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

021026:	NJP for violation of UCMJ, Article 86: Absent from place of duty on 0700, 021008 to 0730, 021009 (1 day).
	Award: Reduction to ATAR.  Reduction suspended.  Administrative separation.  No page 13 warning.  No indication of appeal in the record.

021027:	Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.

021027:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation 

021126:	Commanding Officer directed discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct..

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021120 with a general (under honorable conditions) for misconduct due to a pattern of misconduct (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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).

Issue 1:  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. A characterization of service of general (under honorable conditions) is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) on four separate occasions for violating the UCMJ, Articles 86, 91 and 92 and summary court-martial for violating the UCMJ, Articles 112a and 134 thus substantiating the misconduct.  The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service. An upgrade honorable would be inappropriate.  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 other evidence related to his 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), re-issued October 2002, effective 22 Aug 2002 until Present, 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 II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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 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

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.