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Docket No. ND05-01011

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

FOR OFFICIAL USE ONLY

 ex-AOAN, USN
Docket No. ND05-01011

Applicant’s Request

The application for discharge review was received on 20050602.  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 20051013.  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) 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:

“I was unjustly discharged from the Navy without due process.  Due to a marriage and the death of my grandfather, I was given emergency leave.  When I came back aboard ship, I was displined as I was informed by Senior Chief R_ that I had missed a watch.  As I was unable to find out what was going on with my carrier, I went to JAG.  When I met with JAG they pulled my records on the computer and I was informed that I was already put out of the Navy.  I was not given due process.  When I had a Captain’s Mast I was given 45 days restriction and 45 extra duties.  At this time I was also informed that I was not being discharged from the Navy.  I had also signed to re-enlist for another tour for five more years.  I could not get BDQ started for 3 months after we were married.  I request to have my discharge upgraded to Honorable.”

Documentation

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

Applicant’s DD Form 214  (Member 4)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19930608 – 19940601		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19940602		Date of Discharge:  19970521

Length of Service (years, months, days):

	Active:    02  11  19  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  19

Years Contracted:  4 (3 month extension)

Education Level:  12				AFQT:  72

Highest Rate:  AOAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.4 (2)		Behavior:  2.5 (2)			OTA:  3.20 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Sea Service Deployment Ribbon, Southwest Asia Service Medal, Meritorious Unit Commendation

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

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

Chronological Listing of Significant Service Events: 

960218:	NJP for violation of UCMJ, Article 111:  Drunken or reckless operation of a vehicle.
	Award:  Forfeiture of ½ pay per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

960218:	Retention Warning:  Advised of deficiency (Disciplinary infractions and pattern of misconduct.  The facts precipitating this counseling:  Commanding Officer’s non-judicial punishment on February 18, 1996 for violations of the uniform code of military justice, article(s):  Article 111  – Drunken or reckless operation of a vehicle (1 specification)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

970116:	NJP for violation of UCMJ, Article 86:  Unauthorized absence.
Award:  Forfeiture of ½ pay per month for 2 months (suspended), restriction and extra duty for 45 days, reduction to E-2 (suspended).  No indication of appeal in the record.

970513:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct due to pattern of misconduct as evidenced by all punishments under the UCMJ in current enlistment, and continued failure to pay just debts.

970513:	Commanding Officer, STRIKE FIGHTER SQUADRON 115, recommended to Chief of Naval Personnel, via Commanding Officer, Naval Air Station Lemoore, CA, that the Applicant be discharged with a general (under honorable conditions) character of service by reason of misconduct due to a pattern of misconduct.  Commanding Officer’s comments:  “Airman Apprentice H_ (Applicant) performance has been below average, and his personal conduct is unacceptable.  As evidence by enclosures (4) Certified copy of administrative remarks (NAVPERS 1070/613) of 18 Feb 96 and (5) Copy of Report and Disposition of Offense (NAVPERS 1626/7), he is not suitable for the Naval Service.  Airman Apprentice H_ (Applicant) manifests a long-standing disciplinary and behavior pattern which renders him incapable of serving adequately in the Navy.  This discharge is deemed in the best interest of the Naval Service and the service member.  Airman Apprentice H_ (Applicant) is not recommended for transfer to the Individual Ready Reserve (IRR).”

970519:	Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation and the right to submit statements verbally or in writing.

Unknown:	Applicant’s statement regarding administrative separation.

970521:	Commanding Officer, NAS Lemoore, exercising general court-martial convening authority, directed the Applicant's general (under honorable conditions) discharge by reason of misconduct due to pattern of misconduct.

970610:	BUPERS advised Commanding Officer, Strike Fighter Squadron 115 that the listed SPD Code of HPD is incorrect and directed issuance of DD215 to show correct SPD code of HKA for pattern of misconduct.

970617:	DD215 issued showing SPD code of “HKA.”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970521 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 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.  A 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 record reveals a retention warning and two nonjudicial punishment proceedings for violations of Articles 86 and 111 of the UCMJ.  Violations of Article 111 of the UCMJ 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 his discharge was improper because he was not given due process and further implies that when he sought legal counsel he had already been discharged.  The Applicant submitted no documentation to support his issue.  The evidence of record shows that the Applicant was notified of his Commanding Officer’s intention to recommend the Applicant’s separation on 19970513.  On 19970519, the Applicant waived his right to consult with counsel.  On 19970521, the Applicant’s discharge was directed and executed.  There is no evidence in the record to support the Applicant’s due process contention.  Relief on this basis is denied.

The Applicant contends that at his last NJP proceeding he was informed that he was not being discharged from the Navy and that he had signed a reenlistment contract prior to discharge.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was assured retention at his last NJP or that he had re-enlisted.  Relief denied.  

The Applicant contends that he returned from emergency leave and was informed that he had missed watch and further implies that this precipitated his discharge.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was inequitably or improperly punished while in the Navy or that his subsequent administrative discharge was improper or inequitable.  Relief denied.  

That Applicant implies that his discharge should be upgraded because he experienced pay problems.  While the Applicant may feel that the stress and hardship that resulted from his pay problem was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  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, Change 14, effective 03 Oct 96 until 11 Dec 97), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A 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 111, drunken driving.

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