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Docket No. ND06-00366

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

FOR OFFICIAL USE ONLY

ex-FR, USN
Docket No. ND06-00366

Applicant’s Request

The application for discharge review was received on 20051228.  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 personal appearance hearing before the Board in the Washington, D.C. Metropolitan area.  The Applicant did not designate a representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20061002.  The Applicant was granted an extension until 20061006 to provide additional documentation to support his request. The Board reconvened on 20061018. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board’s voted 3 to 2 that the discharge shall change to: GENERAL (UNDER HONORABLE CONDITIONS) BY REASON OF PATTERN OF MISCONDUCT AUTHORITY: MILPERSMAN, Article 1910-140 (formerly 3630600), Separation Code “HKA.”

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and the attached document.

“An upgrade or change is requested because I entered the United States Navy under the pretense that I would receive the proper discipline that I lacked at the age of 20.  Throughout my journey with the Navy I discovered that I had gotten into something way over my head.  I actually was not ready for the form of disciplinary actions that were being exerted, it was easier for me to misbehave and defy orders.  The consequences to my insubordinate actions resulted in my discharge from the Navy under other than honorable conditions.  7 years has passed from my enlistment and discharge from the Navy.  I have had a continuous work history since then and would like to proceed with future endeavors in Law Enforcement.  I have been working in the security field for 2 years but would like to proceed within my work history with advancements not stagnation.  I consider Law Enforcement as one of those advancements.
I am well aware that 7 years ago I was immature and young and my actions showed my age within my enlistment in the Navy.  I know that I made mistakes and have endured the consequences for those mistakes by receiving an (OTH) discharge.  I realize that I brought this action upon myself but I would like to be given a fair advantage to refute this discharge by having it upgraded.  I would greatly appreciate it if this action could take place in order for me to apply to various law enforcement positions without facing roadblocks during the interviewing phase due to the discharge.  I have grown into a man in leaps and bounds as these 7 years have passed and would like to continue to grow by advancing in my career goals.  I ask that my request be looked upon favorably as I am trying to reach my goals and advance in life.”

Documentation

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

Seventy-one pages from Applicant’s service record
Applicant Criminal Record Check for the State of Maryland (Montgomery County), dtd October 4, 2006 (4 pages)
Applicant Transcripts for Ashworth College (Online), dtd October 6, 2006 (4 pages)
Character reference letter from C_ L_, Manager Business Services, dtd September 28, 2006 
Character reference letter from R_ E. A_, MSgt USAF, Security Specialist, DISA undated
Character reference letter from  T_ K. D_, undated
Character reference letter from  J_ W. B_, undated

PART II - SUMMARY OF SERVICE

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

	Inactive:  None
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19960508		Date of Discharge:  19981028

Length of Service (years, months, days):

	Active:    01  11  16
	Inactive:  00  06  05

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18

Years Contracted:  8

Education Level:  12				AFQT:  39

Highest Rate:  FA

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: 

961113:	Commenced active duty for a period of 36 months.

970826:	NJP for violation of UCMJ, Article 92 - Failure to obey order or regulation.
Specification 1: In that Fireman Apprentice D_ I_ P_(Applicant), U. S. Navy, on active duty, having knowledge of a lawful order issued by IC3 H_ to swab the mess decks, an order which it was his duty to obey, did, on or about 13 Aug 1997, fail to obey the same by refusing.
Specification 2: In that Fireman Apprentice D_ I_ P_, U.S. Navy, on active duty, having knowledge of a lawful order issued by STG1 F_ to relieve or replace SR K_ in the galley, an order which it was his duty to obey, did, on or about 13 Aug 1997, fail to obey the same by refusing.
Charge II: Violation UCMJ Article 91 – Insubordinate conduct toward a petty officer.
Specification: In that Fireman Apprentice D_ I. P_ (Applicant), U.S. Navy, on active duty.  On or about 13 Aug 1997, was disrespectful in language toward RM3 M_, a third class petty officer, who was then in the execution of his office, by saying to him, “F--- You, you Mother f------- think just because you have a crow, you can tell people what to do, you ain’t worth a f---, I can rack up my s---, you mother f----- talk a lot of s---, but won’t ever go outside the ship to back it up!,” or words to that effect.
	Award:  Restriction and extra duty for 30 days.  No indication of appeal in the record.  [Award extracted from previous Decisional Document.]

970828:	Retention Warning:  Advised of deficiency (On 13 August 1997, Applicant failed to obey a lawful order issued by STG1 (SW) F_ to swab the mess decks and were disrespectful in language towards RM3 M_.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

980610:	NJP
Charge 1: Violation of UCMJ, Article 91 - Insubordinate conduct toward Warrant Officer, NCO, Petty Officer.
Specification: Having knowledge of a lawful order issued MS2 K_ S_, to report to the mess decks for duty, an order which it was his duty to obey, did onboard USS NICHOLSON, Portsmouth, VA, on or about 0500, 25 April 1998, fail to obey the same by not knowingly ignoring the above prescribed lawful order.

Charge II: Violation of UCMJ Article 86 - Absence without leave
Specification 1: In that FA D_ I. P_ (Applicant), did onboard USS NICHOLSON, moored at Nauticus Museum, Norfolk, VA, on or about 0500 without authority fail to go at the time prescribed to his appointed place of duty, to wit: Food Service Attendent for messdecks on USS NICHOLSON.
Specification 2: In that FA D_ I. P_ (Applicant), did onboard USS NICHOLSON, moored at Nauticus Museum, Norfolk, VA, on or about 0630, 26 April 1998 without authority fail to go at the time prescribed to his appointed place of duty, to wit: Food Service Attendant for messdecks on USS NICHOLSON.
	Award:  Forfeiture of $500 per month for 2 months, correctional custody for 30 days.  Suspended if you (Applicant) follow all orders from any rate that outranks.  No indication of appeal in the record.

980901:	Applicant unauthorized absence 0615-0715 on 980901.

980915:	NJP 
Charge 1: Violation of UCMJ, Article 92 (2) Dereliction in the performance of duties. 
Specification 1: In that Fireman Apprentice D_ I. P_ (Applicant), US Navy, on active duty, on board USS NICHOLSON DD 982 underway, who knew of his duties as a watch stander for Engineering Department on board USS NICHOLSON DD 982 while underway, did on or about 27 August 1998, was derelict in the performance of those duties in that he negligently fell asleep on watch as Aux monitor as it was his duty to do, which could have caused substantial damage to the Engineering Plant.
Specification 2: In that Fireman Apprentice D_ I. P_ (Applicant), USS NICHOLSON DD 982, US Navy, on active duty, US Navy, on active duty, who knew of his duties as a watch stander for Engineering Department on board USS NICHOLSON DD 982 while underway, did on or about 28 August 1998, was derelict in the performance of those duties in that he negligently fell asleep on watch as Aux monitor as it was his duty to do which could have caused substantial damage to the Engineering Plant.
Charge II: Violation of UCMJ Article 90 Disobeying a superior commissioned officer.
 Specification 1: In that Fireman Apprentice D_ I. P_ (Applicant), USS NICHOLSON DD 982, US Navy, on active duty, having received a lawful command from LT T_ S_, then known by the said FA P_(Applicant), to be his superior commissioned officer, to be the Engineering Officer of the watch, was ordered to stand a proper watch, or words to that effect, did on or about 27 August 1998, willfully disobey the same.

Specification 2: In that Fireman Apprentice D_ I. P_ (Applicant), USS NICHOLSON DD 982, US Navy, on active duty, having received a lawful command from LT T_ S_, then known by the said FA P_(Applicant) to be his superior commissioned officer, to be the Engineering Officer of the watch, was ordered to stand a proper watch, or words to that effect, did on or about 28 August 1998 willfully disobey the same.
Charge III: Violation of UCMJ Article 113 Misbehavior of sentinel
Specification 1: In that Fireman Apprentice D_ P_(Applicant), USS NICHOLSON DD 982, US Navy on active duty, on or about 27 August 1998, on board USS NICHOLSON DD 982 underway, being posted as Aux monitor was found sleeping upon his post
Specification 2: In that Fireman Apprentice D_ P_(Applicant), USS NICHOLSON DD 982 US Navy, on active duty, on or about 28 August 1998, on board USS NICHOLSON DD 982 underway, being posted as Aux monitor was found sleeping upon his post
	Award:  Forfeiture of $520.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

981007:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable by reason of pattern of misconduct.  [Date extracted from supporting documents from the Applicant.]

981007:	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.  [Date extracted from supporting documents from the Applicant.]

981008:	Commanding Officer, USS NICHOLSON (DD 982) recommended discharge under other than honorable conditions by reason of pattern of misconduct as evidenced by Commanding Officer’s nonjudicial punishments of 26 August 1997, 10 June 1998, and 15 September 1998.  Commanding Officer’s comments:  “Fireman Recruit P_(Applicant) lacks integrity and honesty.  He has stated on numerous occasion his disdain for the naval service and his desire to be separated.  He has no concern for standing a proper watch and in the interest of safety has been removed from the ship’s watchbill.  He has completed a 30 day stay at the Correctional Custody Unit (CCU) which did not correct his behavior or attitude.  He is not fit for duty in the United States Navy.  Due to the nature of the offenses I strongly recommend he be separated with an Other Than Honorable Discharge.”

981019:	Commander, Naval Surface Force, U.S. Atlantic Fleet directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

040514:	NDRB documentary record review Docket Number ND03-01234 conducted.  Determination: discharge proper and equitable; relief not warranted.

*Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19981028 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 at the time of issuance (C and D). The Board found that the Applicant merited relief based on post-service equity.  Therefore, by a vote of 3-2 the Board determined the character of the discharge shall change, but by unanimous vote, the narrative reason for discharge shall not change.  The discharge shall change to: general (under honorable conditions) by reason of pattern of misconduct. 

The Applicant requests that his characterization of discharge be changed on the basis of post service equity. The Applicant states that seven years ago he was immature and young but contends he has matured since his discharge. The Board determined that the Applicant’s post-service conduct was sufficiently creditable to warrant an upgrade to his characterization of service to general (under honorable conditions). SECNAVINST 5420.174D states outstanding post service conduct may be considered if it “provide[s] the basis for a more thorough understanding of the performance of the Applicant during the period of service that is the subject of the discharge review.” The instruction also allows consideration of convictions by court-martial, NJP, civil convictions, unauthorized absence, total capabilities, and personal problems (among other factors) in assessing the merits and possible mitigating factors of an application. In the Applicant’s case, the board considered the Applicant’s capability to serve. The Board took into account the below average AFQT score of 39, as well as, his severely deficient maturity level at the time of service. The Applicant’s in-service conduct and demeanor was combative and defiant and he demonstrated an unwillingness to accept authority or complete assigned tasks, particularly those he deemed menial. He exhibited a lack of temperate or sober judgment or an ability to exercise restraint in either speech or conduct. This characterization of his service is supported by the evidence of record. By contrast, his post service conduct showed the Applicant’s commitment to self improvement. The Applicant’s  testimony and post service record showed not only did the Applicant demonstrate a willingness to complete tasks, but showed his initiative by taking several entry level positions, and in every instance worked his way to positions of responsibility and leadership. The board found that the Applicant, was contrite, honest, and took full responsibility for his misconduct while in service. During his testimony, the board found commendable the Applicants obvious introspection regarding his immature state during service and the lessons he has learned and now incorporates in his life. The board found impressive the corollaries the Applicant was able to make between his prior service and his post service conduct. The Applicant had a greater appreciation for the challenges he created for his superiors and peers, now that he was a supervisor. His military experience has influenced his dealings with subordinates; in that he does more mentoring and explaining how each employee’s conduct affects the entire groups output. He is careful not to speak to individuals in a condescending manner. The board discerned tremendous growth and determined that his in service conduct was not indicative of his true character. Additionally, the Applicant was able to provide 5 of the 6 suggested post service documents for the Board’s review. The Board found commendable the Applicant’s steady and consistent career progression in the security field, criminal record check from Montgomery County, MD, verifiable employment references, undergraduate transcript from Ashworth College, and four strong character references. The Applicant’s character references provided the Board greater insight into his various roles as son, father, employee, and citizen. These documents sufficiently reinforced the Board’s favorable impressions and supported its decision, that the Applicant possessed character and drive that was not evident during his tour of active duty. The Board determined that the Applicant’s post-service conduct serves in partial mitigation of his misconduct while on active duty. Therefore, partial relief is granted.

The Applicant requests that his characterization of discharge be changed to honorable. 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 1 retention warning,  and 3 nonjudicial punishment proceedings for violations of Article 86 (2 specs), Article 90 (2 specs), Article 91 (2 specs), Article 92 (4 specs) and Article 113 of the UCMJ. The NDRB advises the Applicant that violations of Articles 90, 91, 92, and 113 are considered serious offenses and a punitive discharge is authorized if adjudged at a special or general court-martial. 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 on this basis is not warranted.

The following is provided for the edification of the Applicant.  The Applicant has exhausted his opportunities for review by the NDRB.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

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 90 ( Disobeying a superior commissioned officer), Article 91 (insubordinate conduct toward a warrant officer , non commissioned officer, or petty officer), Article 92 (dereliction of duty), and Article 113 ( misbehavior of a sentinel).

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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