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

Docket No. ND05-01509

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

FOR OFFICIAL USE ONLY

 ex-AR, USN
Docket No. ND05-01509

Applicant’s Request

The application for discharge review was received on 20050914.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  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 20060619.  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 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 not reporting to my assigned area because I had problems adjusting to my area.  I was sent to the Brigg Several times one time I had a Verbal Confrontation with a fellow shipmate and was sent to the brig again.  My Major problem as I stated earlier was adjustment.  I was 18 years old and this was my first time away from home so many times I was home sick and all could think about was My family at home.  I realize that what I did was wrong but I was young and immature.  I hope the Board would strongly consider up grading my character of Service,”

Documentation

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

Department of Veterans Affairs Statement in Support Claim, dtd September 6, 2005
Applicant’s DD Form 214  (Member 4)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19970902 – 19970924		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19970925		Date of Discharge:  19980803

Length of Service (years, months, days):

	Active:    00  10  09  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  5 days
	Confinement:		  2 days

Age at Entry:  18 

Years Contracted:  4 

Education Level:  12				AFQT:  44

Highest Rate:  AR

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):  None

* Not Available

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

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

Chronological Listing of Significant Service Events: 

980617:	NJP for violation of UCMJ, Article 89:
	Specification:  In that Airman Recruit D_ D. J_ (Applicant), U. S. Navy, USS JOHN F. KENNEDY, on active duty, did, on board USS JOHN KENNEDY, located at Naval Station Mayport, Florida, on or about 16 June 1998, behave himself with disrespect toward Commander E_ W. H_, Supply Corps, U. S. Navy, his superior commissioned officer, then known by the said Airman Recruit D_ D. J_ to be his superior commissioned officer, by turning from Commander E_ W. H-, and saying “f--- you” or words to that effect.
Violation of UCMJ, Article 90: 
Specification: In that Airman Recruit D_ D. J_ (Applicant), U. S. Navy, USS JOHN F. KENNEDY, on active duty, having received a lawful command from Lieutenant S_ M. S_, U. S. Navy, his superior commissioned officer, then known by the said Airman Recruit D_ D. J_ (Applicant) to be his superior commissioned officer to stand at attention and answer questions asked to him, or words to that effect, did, on board USS JOHN F. KENNEDY, located at Naval Station Mayport, Florida, on or about 16 June 1998, willfully disobey the same.
Violation of UCMJ, Article 91: 
Specification 1:  In that Airman Recruit D_ D. J_ (Applicant), U. S. Navy, USS JOHN F. KENNEDY, on active duty, having received a lawful order from Senior Chief Aviation Boatswain’s Mate (Equipment) T_ R. H_, U. S. Navy, a senior chief petty officer, then known by the said Airman Recruit D_ D. J_ (Applicant) to be a senior chief petty officer, to go back to work, an order which it was his duty to obey, did, on board USS JOHN F. KENNEDY, located at Naval Station Mayport, Florida, on or about 16 June 1998, willfully disobey the same.
Specification 2:  In that Airman Recruit D_ D. J_ (Applicant), U. S. Navy, USS JOHN F. KENNEDY, on active duty, having received a lawful order from Chief Aviation Boatswain’s Mate (Equipment) T_ L. S_, U.S. Navy, a chief petty officer, then known by the said Airman Recruit D_ D. J_ (Applicant) to be a chief petty officer, to get up and go back to work, an order which it was his duty to obey, did, on board USS JOHN F. KENNEDY, located at Naval Station Mayport, Florida, on or about 16 June 1998, willfully disobey the same.
Specification 3:  In that Airman Recruit D_ D. J_ (Applicant), U. S. Navy, USS JOHN F. KENNEDY, on active duty, having received a lawful order from Aviation Boatswain’s Mate (Equipment) Second Class R_ R_, U. S. Navy, a petty officer, then known by the said Airman Recruit D_ D. J_ (Applicant) to be a petty offer, to go to work, an order which it was his duty to obey, did, on board USS JOHN F. KENNEDY, located at Naval Station Mayport, Florida, on or about 16 June 1998, willfully disobey the same.
Specification 4:  In that Airman Recruit D_ D. J_ (Applicant), U. S. Navy, USS JOHN F. KENNEDY, on active duty, having received a lawful order from Aviation Boatswain’s Mate (Equipment) Third Class M_ S_, U. S. Navy, a petty officer, then known by the said Airman Recruit D_ D. J_ (Applicant) to be a petty officer, to let’s go and start working, an order which it was his duty to obey, did, on board USS JOHN F. KENNEDY, located at Naval Station Mayport, Florida, on or about 16 June 19998, willfully disobey the same.
Specification 5: In that Airman Recruit D_ D. J_ (Applicant), U. S. Navy, USS JOHN F. KENNEDY, on active duty, on board USS JOHN F. KENNEDY, located at Naval Station Mayport, Florida, on or about 16 June 1998, did treat with disrespectful language Aviation Boatswain’s Mate (Equipment) Third Class M_ S_, U. S. Navy, a petty officer, then known by the said Airman Recruit D_ D. J_ (Applicant) to be a petty officer, who was then in the execution of his office, by saying to him five to ten times “f--- you,” or words to that effect.
Specification 6:  In that Airman Recruit D_ D. J_ (Applicant), U. S. Navy, USS JOHN F. KENNEDY, on active duty, on board USS JOHN F. KENNEDY, located at Naval Station Mayport, Florida, on or about 16 June 1998, did treat with disrespectful language Aviation Boatswain’s Mate (Equipment) Second Class R_ R_, U. S. Navy, a petty officer, then known by the said Airman Recruit D_ D. J_ (Applicant) to be a petty officer, who was then in the execution of his office, by saying to him “f--- that s--- and I ain’t doing s---,” or word to that effect.
Violation of the UCMJ, Article 92:
Specification:  In that Airman Recruit D_ D. J_ (Applicant), U. S. Navy, USS JOHN F. KENNEDY, on active duty, who knew of his duties on board USS KENNEDY, located at Navy Station Mayport, Florida, on or about 16 June 1998, was derelict in the performance of those duties in that he willfully failed to go to work, as it was his duty to do.
Violation of the UCMJ, Article 117:
Specification:  In that Airman Recruit D_ D. J_ (Applicant), U. S. Navy, USS JOHN F. KENNEDY, on active duty, did, on board USS F. KENNEDY, located at Naval Station Mayport, Florida, on or about 15 June 1998, wrongfully use provoking words, to wit:  “I ’ll kick you’re a-- you N-----” or words to that effect toward Airman D_ C_, U.S. Navy.
	Award:  Forfeiture of $463.00 pay per month for 1 month, and confinement on bread and water for 3 days.  No indication of appeal in the record.
980617:	Retention Warning:  Advised of deficiency (CO’s NJP held on 17 June 1998 for VUCMJ, Articles 89, 90, 91, 92 & 117), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

980617:	Applicant to brig.

980619:	Applicant hospitalized at Naval Hospital Jacksonville, FL, Psychiatric Unit.

980622:	Applicant released from Naval Hospital Jacksonville, FL, Psychiatric Unit.  Medical evaluation of Applicant by P. H. B_, LCDR MC USN, PSYCHIATRIST.
	Diagnoses: AXIS I:  Occupational Problems
	AXIS II:  Personality disorder not otherwise specified, DSM IV #301.9
AXIS III:  No Diagnosis
Disposition:  Psychiatrically fit for full duty.  The member is being returned to his parent command.
Recommendations:
	-  The member (Applicant) is considered responsible for his actions.
	-  The attending psychiatrist returns this member to full duty with the strong recommendation that this member be considered for administrative separation for unsuitability in accordance with NAVMILPERSMAN 3620225.  This member is not considered mentally ill and does not suffer from a medically boardable condition.  This member does have a longstanding disorder of character and behavior which could interfere with the member serving adequately in the Navy.  Processing for administrative separation in accordance with NAVMILPERSMAN 3620225 would require, in addition to this member’s personality disorder diagnosis, documented interference with the performance of duty and counseling.
	-The member should follow up with Family Services Center and/or his command Chaplain as needed for individual support/counseling.  In addition, Stress Management and Anger Management classes through Family Services Center are recommended.
	-The member should follow up with his Command Medical Officer for f/u of CBC abnormalities as noted above, any problems from recent scalp laceration and as needed.

980702:	Applicant to unauthorized absence.

980707:	Applicant from unauthorized absence.

980722:	NJP for violation of UCMJ, Article 86 (2 specs):  
	Specification 1:  In that Airman Recruit D_ D. J_ (Applicant), U. S. Navy, USS JOHN F. KENNEDY, on active duty, did, at or about 1915, 2 July 1998, without authority, absent himself from his unit, to wit:  USS JFK, located at NAVSTA Mayport, FL, and did remain so absent until at or about 0730, 7 July 1998, a period of about 5 days.  
	Specification 2:  In that Airman Recruit D_ D. J_ (Applicant), U. S. Navy, USS JOHN F. KENNEDY, on active duty, did, on board USS JOHN F. KENNEDY, located at Naval Station Mayport, Florida, at or about 1915, 2 July 1998, without authority, fail to go at the time prescribed to his appointed place of duty, to wit:  Duty Section Muster.
Violation of UCMJ, Article 91 (7 specs):
Specification 1:  In that Airman Recruit D_ D. J_ (Applicant), U. S. Navy, USS JOHN F. KENNEDY, on active duty, having received a lawful order from Yeoman First Class A_ L. B_, U. S. Navy, a petty officer, then known by the said Airman Recruit D_ D. J_ (Applicant) to be a petty officer, to come to the position of attention and stand still during check-in, an order which it was his duty to obey, did, at Naval Waterfront Brig, Naval Air Station Jacksonville, Florida on or about 17 June 1998, willfully disobey the same.
Specification 2:  In that Airman Recruit D_ D. J_ (Applicant), U. S. Navy, USS JOHN F. KENNEDY, on active duty, having received a lawful order Yeoman First Class A_ L. B_, U. S. Navy, a petty officer, then known by the said Airman Recruit D_ D. J_ (Applicant) to be a petty officer, to respond to questions during check-in in an audible manner, an order which it was his duty to obey, did at Naval Waterfront Brig, Naval Air Station Jacksonville, Florida, on or about 17 June 1998, willfully disobey the same.
Specification 3:  In that Airman Recruit D_ D. J_ (Applicant), U. S. Navy, USS JOHN F. KENNEDY, on active duty, having received a lawful order from Operations Specialist Second Class M_ A. C_, U. S. Navy, a petty officer, then known by the said Airman Recruit D_ D. J_ (Applicant) to be a petty officer, not to lie on his rack, an order which it was his duty to obey, did, at Naval Waterfront Brig, Naval Air Station Jacksonville, Florida, on or about 17 June 1998, willfully disobey the same.
Specification 4:  In that Airman Recruit D_ D. J_ (Applicant), U. S. Navy, USS JOHN F. KENNEDY, on active duty, having received a lawful order from Aviation Boatswain’s Mate (Equipment) Third Class S_ T. W_, U.S. Navy, a petty officer, then known by the said Airman Recruit D_ D. J_ (Applicant) to be a petty officer, to strip the passageway in front of the Bridle Arresting Room, located at 03-71-1-L, an order which it was his duty to obey, did, on board USS JOHN F. KENNEDY, located at Naval Station Mayport, Florida, on or about 2 July 1998, willfully disobey the same.
Specification 5:  In that Airman Recruit D_ D. J_ (Applicant), U. S. Navy, USS JOHN F. KENNEDY, on active duty, on board USS JOHN F. KENNEDY, located at Naval Station Mayport, Florida, on or about 2 July 1998, did treat with disrespectful language Aviation Boatswain’s Mate (Equipment) Third Class S_ T. W_, U. S. Navy, a petty officer, then known by the said Airman Recruit D_ D. J_ (Applicant) to be a petty officer, who was then in the execution of her office, by saying to her, “I don’t give a f--- whether you write me up, do what you have to do,” or words to that effect.
Specification 6:  In that Airman Recruit D_ D. J_ (Applicant), U. S. Navy, USS JOHN F. KENNEDY, on active duty, having received a lawful order from Aviation Boatswain’s Mate (Equipment) Third Class M_ S_, U. S. Navy, a petty officer, then known by the said Airman Recruit D_ D. J_ (Applicant) to be a petty officer, to get up and help with a working party, an order which it was his duty to obey, did, on board USS JOHN F. KENNEDY, located at sea, on or about 17 July 1998, willfully disobey the same.
Specification 7:  In that Airman Recruit D_ D. J_ (Applicant), U. S. Navy, USS JOHN F. KENNEDY, on active duty, having received a lawful order from Aviation Boatswain’s Mate (Equipment) Second Class R_ L. S_, U.S. Navy, a petty officer, then known by the said Airman Recruit D_ D. J_ (Applicant) to be a petty officer, to get up and help with a working party, an order which it was his duty to obey, did, on board USS JOHN F. KENNEDY, located at sea, on or about 17 July 1998, willfully disobey the same.

980723:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct due to pattern of misconduct and misconduct due to commission of serious offense.

980724:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

980726:	Commanding Officer, USS JOHN F. KENNEDY (CV 67), recommended to Commander, Carrier Group TWO that the Applicant be discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of serious offenses.  Commanding Officer’s comments:  “AR J_ (Applicant) has been on board for only six months, and has already received two nonjudicial punishments for numerous serious offenses, including disobeying lawful orders and disrespect.  His refusal to perform assigned tasks and disregard of lawful orders are not acceptable fro a Sailor in the United States Navy.  AR J_ (Applicant) has also violated a Page 13 counseling/warning.  I recommend that he be separated from the naval service with an other than honorable discharge for misconduct due to a pattern of misconduct.”

980728:	COMCARGRU TWO, directed the Applicant's discharged under other than honorable conditions by reason of misconduct due to pattern of misconduct.

Service Record was missing elements of the Summary of Service (Performance and Behavior marks).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980803 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of under other than 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).  The Board presumed regularity in the conduct of governmental affairs (E).

The Applicant contends that his problems in the Navy can be attributed to being home sick, young, and immature.  While he may feel that these factors were 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.

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 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 2 nonjudicial punishment proceedings for violations of Articles 86, 89, 90, 91 (13 specifications), 92 and 117 of the UCMJ.  Violations of UCMJ Articles 89, 90, 91, 92, and 117 are considered to be 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 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 additional evidence related to this 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 18, effective
12 Dec 1997 until 21 Aug 2002, 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 89 (Disrespect toward superior commissioned officer), 90 (Willfully disobeying lawful order or superior commissioned officer), 91 (Willfully disobeying noncommissioned or petty officer), 92 (Failure to obey order, regulation), and 117 (Provoking speech, gestures).

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.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.  

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