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Docket No. ND06-00644

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

FOR OFFICIAL USE ONLY

ex-GSM2, USN
Docket No. ND06-00644

Applicant’s Request

The application for discharge review was received on 20060412.  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 20070125.  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 - ISSUES AND DOCUMENTATION

Decisional Issues

The Applicant claims he served the Navy with Honor, Courage and Commitment.  The Applicant states “During my Naval Career I never had any troubles until I was put in a position of authority and that’s when it seemed by seniors tried there best to make me fall.”

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)
Six pages from Applicant’s service record
Evaluation Report and Counseling Record for report period of August 30, 2003 to November 15, 2003
Evaluation Report and Counseling Record for report period of December 17, 2001 to October 1, 2002
Evaluation Report and Counseling Record for report period of October 2, 2002 to August 29, 2003
Certificate of Distinguished Military Graduate, dated July 7, 2000

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19941219 - 19950620	COG
	Active:   USN	19950621 - 20030721	HON

Period of Service Under Review:

Date of Enlistment:  20030722		Date of Discharge:  20050311

Length of Service (years, months, days):

	Active:    01  07  20
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  27

Years Contracted:  6

Education Level:  12				AFQT:  44

Highest Rate:  GSM1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.7 (3)		Behavior:  3.7 (3)			OTA:  3.48

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy and Marine Corps Achievement Medal (2), Navy Unit Commendation Medal (3), Navy “E” Ribbon (4), Navy Good Conduct Medal (3), National Defense Service Medal (2), Armed Forces Expeditionary Medal (2), Global War on Terrorism Expeditionary Medal

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

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

Chronological Listing of Significant Service Events: 

030722:	Reenlisted this date for a term of 6 years.

040417:	NJP for violation of UCMJ, Article 92: Failure to obey an order or regulation.
Violation of UCMJ, Article 86: Unauthorized absence.
	Award:  Forfeiture of $1258.05 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  Reduction suspended for 6 months.  No indication of appeal in the record.  Appealed: 040423.  Appeal denied: 040514.

040417:	Retention Warning:  Advised of deficiency (Misconduct resulting in NJP.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

050202:	Medical evaluation by R_ D. H_, HM1, USN,
	Symptoms: 29 year old AA male reports with ____ depression and desire to hurt/kill his LCPO.  Pt has longstanding history of personal and command issues, especially with direct chain of command.

050211:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
Violation of UCMJ, Article 91: Insubordinate conduct toward a Chief Petty Officer, to wit:  strike Chief Petty Officer on 040210..
Violation of UCMJ, Article 92: Failure to obey an order or regulation.
Violation of UCMJ, Article 134: Threat, communicating, to wit: wrongfully communicate to DCC D_, a threat that he will kill GSMC K_ on 050210.
	Award:  Forfeiture of $1309.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-5.  No indication of appeal in the record.

050212:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct - pattern of misconduct and misconduct - commission of a serious offense.

050212:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

050212:	Commanding Officer directed discharge with a general (under honorable conditions) by reason of misconduct - pattern or misconduct and commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050311 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).  

The Applicant claims he served the Navy with Honor, Courage and Commitment.  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 was marred by one retention warnings, 2 nonjudicial punishment proceedings for violations of Articles 91 (Insubordinate conduct toward a Chief Petty Officer, 92 (Failure to obey an order or regulation.) and 134 (Threat, communicating) of the UCMJ.  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), re-issued October 2002, effective 22 Aug 2002 until 25 April 2005, 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 91 (Insubordinate conduct toward a Chief Petty Officer), 92 (Failure to obey an order or regulation) and 134 (Threat communitcating)

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