Author: CAP
Last saved by: joyce.meeks
Company: NCPB

Docket No. ND05-00682

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

FOR OFFICIAL USE ONLY

 ex-EN3, USN
Docket No. ND05-00682

Applicant’s Request

The application for discharge review was received on 20050316.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance discharge review before a traveling panel closest to Miami, FL.  The Applicant designate a  civilian counsel as her representative on the DD Form 293.  In a subsequent letter to the Applicant, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held at the Washington Navy Yard, Washington, DC.  The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060209.  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 a pattern of misconduct.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“They marked UA while I was on leave.  My chain of command made the captain changed the honorable discharge to general”

Civilian counsel did not submit issues.

Documentation

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

Letter to Senator B_ N_, dtd August 17, 2004 (2 pages)
Letter from Applicant, undtd (10 pages)
E-mail to Applicant, dtd May 17, 2003
Defense client take in sheet, dtd May 24, 2003
Cover letter from Commander, Navy Personnel Command, dtd August 19, 2002
Request for certification of military or naval service, dtd April 15, 2002 (2 pages)
Special request/authorization, dtd May 23, 2003
E-mail, dtd August 6, 2003 (2 pages)
Captain’s Mast (2 pages)
E-mail, dtd August 5, 2003
E-mails dtd July 31, 2003 and August 1, 2003
Special request/authorization, dtd April 3, 2003
Evaluation Report & Counseling Record, undtd, unsigned (2 copies)
E-mail, dtd August 10, 2003, September 1 2003 and September 3, 2003 (2 pages)
Letter to Applicant from Florida Atlantic University, dtd July 11, 2003
Letter to Applicant from University of North Florida, dtd April 17, 2003
Letter to Applicant from Florida Hospital College of Health Sciences, dtd May 14, 2003
Florida Hospital College of Health Sciences information package
Letter to Applicant from Palm Beach Community College, dtd March 25, 2003
Letter to Applicant from Rollins College, dtd April 3, 2003
E-mail dtd January 3, 2003
Fifty-five pages from Applicant’s service record (found throughout documents)
E-mail dtd July 31, 2003, August 1, 2003 (2 pages)
Letter to Applicant’s mother from USS KITTY HAWK (CV-63)
Message, dtd August 4, 2003
Passenger Ticket and baggage claim (2)
Special request/authorization, dtd January 30, 2003
Applicant’s request for hardship discharge, undtd (2 pages)
Boulevard Manor Nursing Center, June Private Statement, dtd May 23, 2002
Boulevard Manor Nursing Center, June MCAID Pend statement, dtd May 23, 2002
Bethesda Memorial Hospital facesheet, dtd February 22, 2002
Bethesda Memorial Hospital principal diagnosis for Applicant’s mother, dtd March 4, 2002
Bethesda Memorial Hospital facesheet, dtd October 4, 2001
Bethesda Memorial Hospital principal diagnosis for Applicant’s mother, dtd October 4, 2001
Bethesda Memorial Hospital facesheet, dtd April 21, 2002
Bethesda Memorial Hospital principal diagnosis for Applicant’s mother, dtd April 21, 2002
Bethesda Memorial Hospital discharge summary, dtd April 21, 2002 (5 pages)
Copies of checks (6 pages)
F1040EZ print out, dtd July 29, 2002
Temporary additional duty travel orders, dtd December 21, 2001
Incident report addendum, page 5 of 6
Letter to Applicant from Commanding Officer, US Naval Legal Service Office Pacific, dtd April 14, 2003 (2 pages)
Letter to Applicant from Executive Officer, US Naval Legal Service Office Pacific, dtd February 11, 2003 (2 pages)
Letter to Applicant from Claims Examiner, US Naval Legal Service Office Pacific, dtd January 6, 2002
Voluntary statement, dtd September 24, 2002
List of property and claims analysis chart, dtd September 21, 2002
Direct deposit sign-up form, dated October 2, 2002
Promissory note and security agreement from Naval Federal Credit Union, dtd June 19, 2002
Account statements, dtd June 14, 2002, September 16, 2002
Two pages of checks
Non-availability of military police report certificate, dtd October 11, 2002 (4 pages)
Incident report, dtd September 24, 2002 (6 pages)
Special request/authorization, dtd October 12, 2001
Twelve pages from Applicant’ service record
Statement, dtd September 9, 2003
AMC Flight information sheet (2 pages)
Standard Transfer Order, dtd July 29, 2003
Money transfer, dtd January 2, 2002
E-mail, dtd July 31, 2003 and September 12, 2003
Application for temporary license
Letter from UTC Vacation Travel Service, undtd
UTC Invoice/receipt, dtd June 19, 2003
E-mail, dtd from May 5, 2003 to June 12, 2003 (11 pages)
Special request/authorization, dtd August 28 2003
National Guard Recruiting Form (2 pages)
Letter to Applicant’s wife from USS KITTY HAWK (CV 63), undtd
Muster report, dtd July 16, 2003
DD Form 553
Message, dtd July 25, 2003
Special request/authorization, dtd February 26, 2003
Special request/authorization, dtd August 21, 2003
E-mail, dtd August 20, 2003
E-mail, dtd August 21, 2003
Orders, dtd July 1, 2002 (4 pages)
Special request/authorization, dtd August 21, 2003
E-mail, dtd August 21, 2003
E-mail, dtd September 3, 2003
E-mail, dtd August 20, 2003
E-mail, dtd September 8, 2003
E-mail, dtd September 14, 2003
Curtailment of liberty letter, dtd August 1, 2003
Leave request/authorization, dtd June 23, 2003
Leave request/authorization, dtd May 6, 2003
Voluntary statement, dtd September 16, 2003 (5 pages)
E-mail, dtd July 19, 2003
Visa to Japan
Message, dtd March 20, 2003
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19970721 - 19990907			COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19990908		Date of Discharge:  20031003

Length of Service (years, months, days):

	Active:    04  00  26  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:	28 days
	Confinement:			None

Age at Entry:  20

Years Contracted:  4

Education Level:  12				AFQT:  51

Highest Rate:  EN3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00* (1)			Behavior:  1.00 (1)		OTA:  2.67

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Sea Service Deployment Ribbon (3), Overseas Service Ribbon (3), National Defense Service Medal, Armed Forces Expeditionary Medal, Meritorious Unit Commendation, Good Conduct Medal.

*Does not include two unsigned and undated Evaluation Reports submitted by Applicant.

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

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

Chronological Listing of Significant Service Events: 

030220:	NJP for violation of UCMJ, Article 86.
	Specification: Unauthorized absence on 021230.
	Award:  Restriction and extra duty for 20 days, reduction to E-3.  Reduction suspended for 6 months.  No indication of appeal in the record.

030220:	Retention Warning:  Advised of deficiency (Unauthorized absence.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030623:	Applicant to unauthorized absence at 0730 on 030623.

030721:	Applicant from unauthorized absence at 0730 on 030721 (28 days/surrendered).

030723:	Applicant declared a deserter.

030807:	NJP for violation of UCMJ, Article 86:  Unauthorized absence 
	Specification: In that Engineman Third Class C_ S_ (Applicant), U.S. Navy, USS KITTY HAWK, on active duty, did, on or about 23 June 2003, without authority, absent himself from his unit, to wit: USS KITTY HAWK, located at Yokosuka, Japan, and did remain so absent until on or about 21 July 2003.
Violation of UCMJ, Article 91:  Disrespect toward petty officer.
Specification: In that Engineman Third Class C_ S_ (Applicant), U.S. Navy, USS KITTY HAWK, on active duty, on board USS KITTY HAWK, located at Yokosuka, Japan, did, on or about 4 August 2003, was disrespectful in language toward Personnelman Second Class M_, U.S. Navy, a superior petty officer, then known by the said Engineman Third Class S_ (Applicant) to be a superior petty officer, who was then in the execution of her office, by saying to her, “You can’t f_ with my EAOS”, or words to that effect.
	Award:  Forfeiture of $972 per month for 1 month, restriction and extra duty for 30 days.  No indication of appeal in the record.

030807:	Applicant notified of intended recommendation for discharge by reason of misconduct - pattern of misconduct and misconduct commission of a serious offense.  Applicant notified that the least favorable characterization of service possible is under other than honorable conditions.

030912:	Applicant notified of intended recommendation for discharge by reason of misconduct - pattern of misconduct and misconduct commission of a serious offense.  Applicant notified that the least favorable characterization of service possible is general (under honorable conditions).

030912:	Applicant advised of rights and having consulted with counsel, elected to submit a statement, to obtain copies of the documents used to support the basis for the separation, and to general courts-martial convening authority review.

030912:	Commanding Officer, USS KITTY HAWK (CV 63) having Special Court-Martial convening authority determined that separation is warranted by reason of misconduct - pattern of misconduct and misconduct - commission of a serious offense.  The characterization of the service shall be based on service record review.

030912:	Commanding Officer, USS KITTY HAWK (CV 63) recommended discharge with a general (under honorable conditions) by reason of misconduct - pattern of misconduct and misconduct - commission of a serious offense.  Commanding Officer’s comments:  “As addressed in Subparagraph (d) above, EN3 S_ (Applicant) meets the requirements for administrative processing for pattern of misconduct and commission of a serious offense.  He has continually proven that he is incapable of conforming to the most simple and basic military duties.  He has been counseled repeatedly and the chain of command has given him every opportunity, but he has chosen to fail.  His most recent criminal conduct proves he does not have the potential for future honorable service and is a substantial risk while on liberty.  Therefore, I am separating him under General conditions.”

030919:	Commander, Carrier Group FIVE directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct due to a pattern or misconduct

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20041003 by reason of misconduct due to a pattern of misconduct (A) 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 (B and C).

By regulation, a discharge shall be deemed proper, unless it is determined that an error of fact, law, procedure, or discretion has substantially prejudiced the rights of the Applicant.  The Applicant was discharged with a general (under other honorable conditions) by reason of misconduct due to a pattern of misconduct.  A review of the Applicant’s service record convinced the Board that a preponderance of evidence exists to support the Applicant’s basis for separation by virtue of his two NJPs on 20030220 and 20030807 for violations of UCMJ Articles 86, unauthorized absence and 91, disrespect toward a petty officer along with a NAVPERS 1070/613 counseling/retention warning on 20030220.  The record further reveals that the Applicant was properly processed and notified for separation by reason of misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense on 20030912 with a least favorable characterization of general (under honorable conditions).  On the same day, the Commanding Officer, USS Kitty Hawk (CV 63), recommended to Commander, Carrier Group Five, that the Applicant be discharged with a general (under honorable conditions) by reason of misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense.  On 20030919, Commander, Carrier Group Five directed the Applicant’s discharge.  Based upon the above review, the Board unanimously concluded that the Applicant’s discharge processing was in substantial compliance with applicable statutes, rules, and regulations.  Despite the Applicant’s contentions, the Board could find no error of fact, law, procedure, or discretion that might afford the Applicant relief.  Thus, the Board concluded that relief is not warranted.

Regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment.  Furthermore, there are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis of characterization for a Sailor’s overall service.  The incident need not result in formal punishment to be properly used to characterize a Sailor’s service.  When the service of a member of the U.S. Navy has met the standard for acceptable conduct and performance, it is appropriate to characterize that service as honorable.  A general (under 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 record.  The Applicant’s service was marred by two nonjudicial punishment proceedings for violations of UCMJ Articles 86 and 91, for a 28-day unauthorized absence and disrespect to a superior petty officer and one NAVPERS 1070/613 retention warning.  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.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his 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.  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 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 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