Author: CAP
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Company: NCPB

Docket No. ND05-00946

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

FOR OFFICIAL USE ONLY

 ex-AR, USN
Docket No. ND05-00946

Applicant’s Request

The application for discharge review was received on 20050509.  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 20050915.  After a thorough review of the available 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) 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 attached document/letter:

“Dear DRB: The following issues are the reasons I believe my discharge should be upgraded to Honorable.  If you disagree, please explain in detail why you disagree.  The presumption of regularity that might normally permit you to assume that the service acted correctly in characterizing my service as less than honorable does not apply to my case because of the evidence I am submitting.

As I enlisted in the military I had a very positive attitude that this life changing experience would be an important decision in my life.  Accepting the responsibility to serve my country I mentally prepared myself to enhance my character to help and serve the government to the best of my ability.  My average conduct and efficiency ratings and proficiency marks were good.  As I familiarized myself with what was expected of me, I put all effort into trying to be what the military wanted of me.  I cannot say that I am perfect and that I was able to master all of the challenges at once, but as you can read in my files, I had positive and encouraging marks.

During the years of 2003 to 2004 I served the Navy in Iraq upon the USS Lincoln.  During the voyage I had medical emergencies that were ignored which caused a lot of distress and frustration on my part.  I will not dismiss the fact that I have NJPs/Article 15s on my record, but it indicates only isolated or minor offenses.  In part these were due to personal problems that impaired my ability to serve such as getting sick, and enduring optical complications, which was left unattended for quite some time.  As far as when speaking to command officers, I was misunderstood causing the conflicting ideas to be blown out of proportion, and then not given a fair hearing when trying to explain concerns affecting my well-being.

Upon return from my mission, I had submitted for early dismissal so that I could begin to start my life outside the military with my new wife and my educational future.  I was denied this request, due to a wrongful accusation, after which took an mental and emotional on my optimism and desire for successfully completing my service.  I had a great deal of stress, adding to my depression and physical state.  I had been doing so well to abide by what was expected of me by doing what I was asked and respectfully complied.  When I did seek to correct any false bearings that were placed on myself by my superior officers, I was misunderstood and not fairly given an opportunity to defend my integrity and myself.  I am sure it is obvious to see how this could upset someone, but yet I pulled through this situation and carried out all given to me.  When it did come down to my discharge there were false accusations placed on myself and other shipmates.  I did not know how to go about the injustice that I was being accused of; therefore the punishment I got at discharge was too harsh.  My punishment was much worse than what my shipmates received for the same offense.  I hope that you will take into consideration my unfairly unheard plea of pardon and review my case with respect and fairness.  Thank you for your time and I will await your decision.

Respectfully and Honorably,

C_ M.  S_ (Applicant)”

Documentation

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

Department of Veterans Affairs Rating Decision decided April 18, 2005 (3 pgs) 

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19990805 – 19991214		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19991215		Date of Discharge:  20031126

Length of Service (years, months, days):

	Active:    03  11  12  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  20

Years Contracted:  4 

Education Level:  12				AFQT:  35

Highest Rate:  AA

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):  Meritorious Unit Commendation, Navy Unit Commendation, Armed Forces Expeditionary Medal, National Defense Service Medal, Battle “E” Ribbon (2), Sea Service Ribbon.

* Not Available

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: 

020512:	NJP for violation of UCMJ, Article 86:  On or about 02 APR 13, MBR did, on board USS ABRAHAM LINCOLN (CVN-72), fail to go to his appointed place of duty.
Violation of UCMJ, Article 91: On or about 02 APR 13, MBR was disrespectful in deportment toward a Senior Petty Officer.
	Award:  Reduction to E-2, forfeiture of $461.80 pay per month for 2 months, restriction and extra duty for 30 days.  No indication of appeal in the record.

030316:	NJP for violation of UCMJ, Articles 91 and 128: On or about 03 MAR 09 did threaten with contempt Mess Specialist Chief A_, a chief petty officer, then known by the said airman to be a chief petty officer, who was then in the execution of his office, by getting up from his chair and approaching  Chief A_ in a threatening manner and assault Mess Specialist Chief A_ by threatening said chief.  
	Award:  Forfeiture of $764.00 pay per month for 2 months, reduction to E-2, extra duty for 45 days.  No indication of appeal in the record.

030316:	Retention Warning:  Advised of deficiency (CO’s NJP for the violation of the UCMJ Article 91 (contempt or disrespect toward Chief Petty Officer) and Article 128 (Simple Assault)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

031024:	NJP for violation of UCMJ, Article 108: Wrongful disposition of military property of the United States, of a value of about $250.00, 03 Oct 14.
	Award:  RIR to AR, and 45 days extra duty and restriction to limits of NBVC Point Mugu, CA.  No indication of appeal in the record.

031125:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct pattern of misconduct.

031125:	Applicant advised of rights and having elected not to consult with counsel elected to waive all rights.

031211:	Commanding Officer, Carrier Airborne Early Warning Squadron ONE ONE THREE, advised CNPC of Applicant’s administrative discharge general under honorable conditions by reason of pattern of misconduct.  Commanding Officer’s comments:  “This member went to NJP three times during his tour in this squadron.  He showed a trend of disrespect towards those appointed above him and his attitude portrayed a negative impact on those Sailors around him.  In addition, he continually showed the inability to make decisions consistent with Navy and squadron regulations and failed to accept responsibility for his own action.  It is clear that he has not adapted to military life, nor will he ever.  The command believes that his disciplinary problems were the result of his unwillingness to accept his position in the chain of command.  Also, the command has spent over a year and a half trying to help him overcome his deficiencies.  For the foregoing reasons, the member was separated on 26 November 2003 with a characterization of service of General Under Honorable conditions.”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031126 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of general (under honorable conditions).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  

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.  An under other than honorable conditions or 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 three nonjudicial punishment proceedings for violations of Articles 86, 91, 108 and 128 of the UCMJ.  The Applicant’s violations of  Articles 91, 108 and 128 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 is not warranted.

The Applicant contends that he committed only “isolated or minor offenses,” and that  personal problems such as “getting sick” and “optical complications” caused “distress and frustration” that should mitigate his misconduct.  The record documents that the Applicant did not commit only minor offenses.  In accordance with reference (B), the Applicant committed four serious offenses which were adjudicated at nonjudicial punishment.  The Applicant assaulted a chief petty officer and was insubordinate in his conduct toward a chief petty officer and senior petty officer.  Finally, the Applicant violated Article 108 by wrongfully disposing of military property of a value of about $250.00.  The Applicant had a well-established pattern of misconduct and the Board found no improprieties or inequities in the characterization of his service.  There is no evidence in the record, nor did the Applicant provide any evidence apart from his statement, to suggest that Applicant was not responsible for his misconduct or that he should not be held accountable for his actions.   Relief denied.

The Applicant contends that he was treated unfairly and that there were “false accusations placed on myself.”  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 his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was treated unfairly or inequitably by his Commanding Officer or anyone in the chain-of-command.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  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.  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 91, insubordinate conduct toward a petty officer, Article 128, assault and disposing of property of a value of $500.00 or less.

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 6 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.