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Docket No. ND06-00390

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

FOR OFFICIAL USE ONLY

 ex-PCSA, USN
Docket No. ND06-00390

Applicant’s Request

The application for discharge review was received on 20060112.  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 20061108.  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:

“1. Labeled with the stigma of being a trouble maker and discrimination.
2. Not fairly treated or given reasonable chances.
3. Not working my assigned rate as a Postal Clerk, sent to deck department for no clear reason, having not committed any postal violations that warranted being dismissed from the post office.
4. I wasn’t properly discharged, not given a physical or dental exam, I was sent to TPU a day before the USS PELELIU left on six month deployment, I was supposed to be on medical hold due to any injury to my knee.  TPU told me that I was discharged from the Navy and told me to leave.
5. I had not been court martial while in the Navy.”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20000317 - 20000514	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20000515		Date of Discharge:  20030812

Length of Service (years, months, days):

	Active:    03  02  28  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  90 days
	Confinement:		  None

Age at Entry:  19 

Years Contracted:  4 (12-month extension)

Education Level:  12				AFQT:  65

Highest Rate:  PCSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.3 (3) 		Behavior:  2.3 (3)			OTA:  2.29

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal

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: 

000511:	Point waiver granted for Postal Clerk program.

010410:	Retention Warning:  Advised of deficiencies in performance and/or conduct (Violation of UCMJ Article 86, UA from appointed place of duty on nine separate occasions, 010101, 010103, 010114, 010119, and 010124-010127.  Most recently, UA from assigned watch (Messenger of the Watch 0400-0800) and also UA at muster with off-going duty section on 010407).  Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010607:	NJP for violation of the UCMJ, Article 86:  Unauthorized absence.
	[Extracted from Retention Warning this date.]

010607:	Retention Warning:  Advised of deficiencies in performance and/or conduct (NJP on this date for VUCMJ, Article 86-Unauthorized absence).  Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010711:	NJP for violation of UCMJ, Article 86: Unauthorized absence, 010614 – 010711.
	Award:  Confinement on Bread and Water for 3 days.  No indication of appeal in the record.

011111:	Applicant to unauthorized absence at 0730.

020105:	Applicant from unauthorized absence at 0025 (54 days/apprehended by military authority and returned to USS TARAWA (LHA 1) at San Diego, CA).

020110:	NJP for violation of UCMJ, Article 86 (2 specs): Unauthorized absence 2 days and 54 days.
	Violation of UCMJ, Article 92: Failure to obey.
Violation of UCMJ, Article 112: Drunk on duty.
	Award:  Restriction to the limits of the ship for 60 days.  No indication of appeal in the record.

020214:	NJP for violation of UCMJ, Article 86 (2 specs): Unauthorized absence on 020124 and 020125.
	Award:  Restriction to the limits of the ship for 60 days, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

030626:	NJP for violation of UCMJ, Article 86 (2 specs): Left appointed place of duty at 1500, 030526, and unauthorized absence from 030529 until 0620, 030605.
Award:  Forfeiture of $644.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

030710:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct pattern of misconduct and misconduct commission of a serious offence.

030710:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

030710:	Commanding Officer, USS PELELIU (LHA 5) recommended to Commander, Amphibious Group Three, San Diego that Applicant be discharged under other than honorable conditions by reason of misconduct pattern of misconduct, and misconduct commission of a serious offense.
  Commanding Officer’s comments:  “PCSA S_’s (Applicant) pattern of unauthorized absences makes him unsuitable and unreliable to this Command.  While we are in the process of making ready for deployment, PCSA S_ is creating more work for the Sailors in his division, especially during underway periods.  PCSA S_ had been onboard this ship for 4 months and has spent half of that time off the ship in an unauthorized status.  Throughout his career he has repeatedly displayed a blatant disregard for U.S. Navy Regulations.  His continued misconduct is detrimental to the good order and discipline of this Command.  PCSA S_ has had over two years and ample opportunity to improve his professional and personal behavior during his current active duty enlistment, through the assistance and guidance of his chains of command.  His professional performance has remained consistently substandard and his personal behavior is such that he has become an administrative burden to this chain of command.  He is not recommended for retention and has no potential for future Naval service or any military organization.  I strongly recommend that PCSA S_ be discharged immediately from Naval service, with an Other Than Honorable characterization.”

030728:	GCMCA, COMPHIBGRU THREE directed the Applicant's discharge under other than honorable conditions by reason of pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030812 by reason of misconduct due to a pattern of misconduct (A) with a service characterization of under other than 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 (B and C).  

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 2 retention warnings and 5 nonjudicial punishment proceedings for violations of Articles 86, 92 and 112 of the UCMJ.  The NDRB advises the Applicant that certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline. Violations of Article 86, 92 and 112 are considered serious offenses and a punitive discharge is authorized if adjudged at a special or general court-martial.  There is no evidence in the record to support the Applicant’s contention that he was treated unfairly in any way.  To the contrary, the record indicates that the Applicant was given every opportunity to correct his clearly identified deficiencies.  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 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, credible evidence of a substance free lifestyle 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.  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.  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), re-issued October 2002, effective 22 Aug 2002 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C.  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