Author: CAP
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Docket No. ND06-00601

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

FOR OFFICIAL USE ONLY

 ex-AR, USN
Docket No. ND06-00601

Applicant’s Request

The application for discharge review was received on 20060301.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “honorable.”  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.  Subsequent to the application, the Applicant obtained the Disabled American Veterans as his representative.

Decision

A personal appearance discharge review was conducted in Washington, D.C. Metropolitan area on 20070509.  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) at the time of issuance.  However, after consideration of the Applicant's post service accomplishments, the Board determined that partial relief was warranted.  The Board voted three to two that the discharge characterization shall change to general (under honorable conditions) and voted unanimously that the reason for discharge remain the same.  The discharge shall be changed to: GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority: MILPERSMAN 1910-140, Separation Code “HKA.”

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Decisional Issues

Issues submitted by Applicant’s Representative (Disabled American Veterans):

Equity: Post Service

Equity: Youth and Immaturity

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214 (Member 4)
Job reference from Saline County Sheriff’s Search and Rescue, dated November 28, 2005
Saline County Sheriff’s Department back ground check on Applicant, dated November 28, 2005
Character Reference ltr from B_ H_, Owner/Instructor, Scuba Dreams Dive Training and Travel, dated December 21, 2005
Character Reference ltr from W_ R_, Lieutenant Governor, State of Arkansas, dated December 14, 2005
Letter to Applicant from M_ R_, Congress of the United States, House of Representatives, dated December 13, 2005
Character Reference ltr from T_ D. M_, dated November 23, 2005
Letter from B_ A, State Representative, State of Arkansas, House of Representatives, dated November 15, 2005
Character Reference ltr from G_ H_, Assistant Principal, Ringgold Elementary, dated November 22, 2005
Character Reference ltr from B_ D. P_, dated November 16, 2005
Character Reference ltr from B_ J. B_, O.D., Mena Eye Care, dated September 25, 2005
Character Reference ltr from J_ H_, P.A., Attorney at Law, dated November 14, 2005
Character Reference ltr from M_ W. B_, Ed.D., Retired, undated
Character Reference ltr from E_ D_ M_, Applicant’s mother, dated January 31, 2006

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19890727 - 19890809	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19890810		Date of Discharge:  19910624

Length of Service (years, months, days):

	Active:    01  10  15  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  77 days
	Confinement:		  31 days

Age at Entry:  23

Years Contracted:  4

Education Level:  13 ½			AFQT:  26

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.8 (1)		Behavior:  2.8 (1)		OTA:  2.80

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

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority:  MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events: 

900401:	Applicant to unauthorized absence at 0715.

900404:	Applicant from unauthorized absence at 1830 (3 days/surrendered).

900413:	NJP for violation of UCMJ, Article 86: Unauthorized absence on or about 0715, 900401 to 1830, 900404.
Violation of UCMJ, Article 90: Failure to obey a lawful command from a superior commissioned officer on or about 900331.
Violation of UCMJ, Article 92: Dereliction of duties on or about 900329.
Violation of UCMJ, Article 134: Wrongful use of a false or unauthorized pass on or about 900331.
	Award:  Forfeiture of $100.00 per month for 2 months, restriction and extra duty for 20 days.  No indication of appeal in the record.

900413:	Retention Warning:  Advised of deficiency (You were awarded CO’s NJP on 900413 for Article 86, 90, 92.  At mast you were counseled by the Commanding Officer regarding your deficiencies.  Such conduct is prejudicial to good order and discipline and will not be tolerated.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900718:	NJP for violation of UCMJ, Article 92: Wrongfully possessing 2 Armed Forces identification cards.
	Award:  Forfeiture of $75.00 per month for 1 month, restriction and extra duty for 10 days.  No indication of appeal in the record.

901031:	Applicant to unauthorized absence at 0700.  [Extracted from message R 110900Z Dec 90.]

901130:	Applicant from unauthorized absence at 0730 (30 days/surrendered).

901130:	Applicant to unauthorized absence 1000.

901211:	Applicant declared a deserter due to his flight to avoid prosecution.

910114:	Applicant from unauthorized absence at 1515 (44 days/surrendered). [Extracted from message R 151500Z Jan 91.]

910314:	Special Court-Martial.
	Charge:  violation of the UCMJ, Article 86 (4 specs)
	Specification 1: UA from USS CARL VINSON CVN-70 from 901016 to 901022 (6 days).
	Specification 2: UA from USS CARL VINSON CVN-70 from 901026-901029 (3 days).
	Specification 3: UA from USS CARL VINSON CVN-70 from 901031 to 901130 (30 days).
	Specification 4: UA from USS CARL VINSON CVN-70 from 901130 to 910114 (44 days).
	Finding: to Charge and the specifications thereunder, guilty.
	Sentence: Forfeiture of $200.00 per month for 2 months, confinement for 45 days, reduction to E-1.
	CA action 910401:  [Extracted from Commanding Officer, TPU Puget Sound ltr to CNPC dated 910521.]

910314:	Applicant to confinement. [Extracted from undated court memorandum NAVPERS.]

910413:	Applicant from confinement. [Extracted from undated court memorandum NAVPERS.]

910415:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to commission of a serious offense, as evidenced by special court-martial of 910314, Commanding Officer’s nonjudicial punishment of 900718, and Commanding Officer’s nonjudicial punishment of 900413, and by reason of misconduct due to a pattern of misconduct, as evidenced by special court-martial of 910314, Commanding Officer’s nonjudicial punishment of 900718, and Commanding Officer’s nonjudicial punishment of 900413.

910415:	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.

910521:	Commanding Officer, Transient Personnel Unit, Puget Sound, Seattle, recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense, as evidenced by special court-martial of 910314, Commanding Officer’s nonjudicial punishment of 900718, and Commanding Officer’s nonjudicial punishment of 900413, and by reason of misconduct due to a pattern of misconduct, as evidenced by special court-martial of 910314, Commanding Officer’s nonjudicial punishment of 900718, and Commanding Officer’s nonjudicial punishment of 900413.

910614:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19910624 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 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).

Equity: Post Service: The Applicant is requesting a discharge characterization upgrade to honorable based on his post service accomplishments.

The Board found that the Applicant’s post-service conduct was sufficiently creditable to warrant an upgrade to his characterization of service to general (under honorable conditions).  The Applicant’s employment, community service, and strong references demonstrated that he possessed the character and drive that was not evident during his tour of active duty.  His post-service actions demonstrate that his misconduct was based on poor judgment and a lack of understanding, not reflective of his overall character.  However, the Board found that the Applicant’s post-service conduct does not sufficiently mitigate his misconduct while on active duty to warrant full relief in the form of an honorable discharge.  Therefore, partial relief is granted.

Equity: Youth and Immaturity:  The Applicant claims that poor decisions during his period of active service were based on youth and immaturity.  

The Applicant contends that his problems in the Navy can be attributed to his "youthful decisions based on immaturity."  While he may feel that his youth and immaturity 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 on this basis is denied.

During the personal appearance hearing the Applicant requested that his narrative reason be changed to secretarial authority.  In cases where no other reason for separation set forth in the Naval Military Personnel Manual is appropriate, but where separation of a member is considered to be in the best interest of the service, the Secretary of the Navy has the authority to direct the separation of any member prior to the expiration of their term of service.  The Applicant’s Commanding Officer determined the Applicant had no potential for further Naval service.  The basis for his determination is clearly documented in the service record.  There is no other narrative reason for separation which accurately describes the reason the Applicant was separated.  Therefore, the NDRB determined that the reason for the Applicant’s discharge shall not change.

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 15560A, Change 8 effective 21 Aug 89 until 14 Aug 91), 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 86 (Unauthorized absence more than 30 days), 90 (Failure to obey a lawful command), 92 (Dereliction of duties) and 134 (Wrongful use of a false or unauthorized pass).  

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 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