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

FOR OFFICIAL USE ONLY

 ex-GMSN, USN
Docket No. ND05-00875

Applicant’s Request

The application for discharge review was received on 20050425.  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 20050819.  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/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:

“FOR THE POSSIBILITY OF GETTING A BETTER JOB.  ALSO, I WISH TO SERVE AGAIN BY ENTERING LOCAL POLICE ACADAMY.  THE NEED FOR AN UPGRADE IS THERE.  SEE DD-214 FOR MY PREVIOUS GOOD CONDUCT & VARIOUS AWARDS.  MY DISCHARGE WAS AN ISOLATED INCIDENT”

Documentation

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

The Applicant submitted no additional documentation for consideration

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	990204 – 990721	COG
	Active:  None

Period of Service Under Review:

Date of Enlistment:  990722		Date of Discharge:  021018

Length of Service (years, months, days):

	Active:    03  02  28 
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (24 month extension)

Education Level:  12			AFQT:  68

Highest Rate:  GM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.0 (2)		Behavior:  2.0 (2)		OTA:  2.43

Military Decorations:  None

Unit/Campaign/Service Awards:  National Defense Service Medal, Navy Good Conduct Medal, Naval Reserve Sea Service Ribbon, Sea Service Deployment Ribbon, Marksman Pistol Ribbon

Days of Unauthorized Absence:  None

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

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

Chronological Listing of Significant Service Events:

011210:	Applicant counseled for PFA failure.

020829:	NJP for violation of UCMJ:
Charge I:  Violation of UCMJ, Article 92:
Specification:  In that Gunner’s Mate Third Class Petty Officer D_ E. S_ (Applicant), U.S. Navy, on active duty, did, on or about 1700, 21 July 2002, who knew of his duties on board USS CURTS, located at Naval Station, San Diego, was derelict in the performance of his duties in that he willfully failed to perform a PMS check as it was his duty to do.
Charge II:  Violation of UCMJ, Article 107:
Specification:  In that Gunner’s Mate Third Class Petty Officer D_ E. S_ (Applicant) U.S. Navy, on active duty, did, on board USS CURTS, located at Naval Station, San Diego, on or about 1700, 21 July 2002, with intent to deceive, sign an official record, to wit:  a thirteen week report for PMS check 2W-1R as being complete, which record was false in that he did not perform the check, and was then known by the said Petty Officer S_ (Applicant) to be so false.
Award:  Correctional Custody Unit for 30 days, reduction to E-3 and forfeiture of ½ pay per month for 2 months (suspended for 3 months).  No indication of appeal in the record.

020829:	Retention Warning:  Advised of deficiency (Violation of UCMJ, Article 92 (Failure to obey order or regulation)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020913:	NJP for violation of UCMJ, Article 92:
Charge:  In that Seaman D_ W. S_ (Applicant), U.S. Navy, on active duty, having knowledge of a lawful order issued by Commander B_ T. C_, to wit:  to complete 30 days at the Correctional Custody Unit, an order which it was his duty to obey, did, at Correctional Custody Unit, Camp Pendleton, CA, on or about 9 September 2002, fail to obey the same by wrongfully failing to train.
	Award:  Bread and water and confinement from Sept 13, 2002 until September 16, 2002 (3 days) and vacation of suspended award of 020829.

020916:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and by a commission of a serious offense.

020916:	Applicant advised of rights and having elected not to consult with qualified counsel, elected to waive all rights.

021003:	Commanding Officer, USS CURTS (FFG 38), recommended to Commander, Naval Surface Force, U.S. Pacific Fleet, that the Applicant be discharged under other than honorable conditions by commission of a serious offense evidenced by CO’s NJP, 13 September 2002, (violation of UCMJ Article 92); and pattern of misconduct by evidence by CO’s NJP on 13 September 2002 and 29 August 2002.  Commanding Officer’s comments (verbatim):  GMSN S_ (Applicant)’s day-to-day job performance is below average.  He has been counseled several times about following through and completing tasks that have been assigned to him.  Most recently he refused to complete his training at Correctional Custody Unit which he was assigned to due to gun decking PMS.  He completed only a day and a half worth of training before was processed out for refusing to train.  I can not allow someone who refuses to complete tasks assigned to him to stay in my Navy.  I do not believe that GMSN S_ (Applicant) wants to be in the Navy.  I recommend separate GMSN S_ (Applicant) from the Navy with an Other than Honorable discharge characterization.

021009:	COMNAVSURFPAC directed the Applicant's discharge under other than 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 20021018 under other than honorable conditions for misconduct due to a pattern of misconduct (A and B).  The Board presumed regularity in the conduct of governmental affairs.  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).

The Applicant contends that his discharge was due to an isolated incident.  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 record.  The Applicant’s service was marred by a retention warning and two nonjudicial punishment proceedings for violations of Articles 92 and 107 of the UCMJ.  Violations of Article 92 and 107 are considered serious offenses.  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 denied.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  There is no law or regulation, which provides that an unfavorable discharge may be upgraded, based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any post-service documentation for the Board to consider.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  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.  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 92, failure to obey an order/regulation or Article 107, false official statement.
 
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