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Docket No. ND06-00765

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

FOR OFFICIAL USE ONLY

ex-FR, USN
Docket No. ND06-00765

Applicant’s Request

The application for discharge review was received on 20060516.  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 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 20070308.  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 and reason for 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

EQUITY – Command environment (Applicant not permitted to change divisions).
PROPRIETY  – Applicant was never “allowed to file grievances.” 
PROPRIETY – Applicant erroneously found to have violated the UCMJ at his last nonjudicial punishment.

Documentation

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

Applicant’s DD Form 214
Letter from Applicant, undated (2 pgs)
High School Equivalency Diploma, dtd June 30, 2005
Firefighter Certificate, dtd April 20, 2004
Hazardous Material Operations Certificate, dtd April 19, 2005
Firefighter Certificate, dtd June 2, 2005
Hazardous Material Awareness Certificate, dtd April 24, 2004
Emergency Response Guidebook Training Certificate, dtd March 8, 2005
Hazardous Material Awareness Certificate, dtd March 15, 2005
Firefighter Rescue Certificate of Appreciation, dtd August 29, 2004
Firefighter Survival Certificate of Appreciation, dtd August 28, 2004
Rope Rescue (Operations Level) Certificate, dtd July 16, 2005
Flashover Simulation and Thermal Imaging Certificate, dtd June 10, 2004
2004 Pipeline Safety Training Certificate
FEMA Certificate of Achievement, dtd August 3, 2005
Fire and Rescue Training Award, dtd December 20, 2004
ComNET Exam Certificate of Completion, dtd January 2, 2006
Initial Response to Critical Incidents Certificate, dtd March 25, 2006

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20001012 - 20001025	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20001026		Date of Discharge:  20020426

Length of Service (years, months, days):

	Active:    01  06  01  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18 

Years Contracted:  4 

Education Level:  9				AFQT:  35

Highest Rate:  FA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.0 (2)		Behavior:  1.5 (2)			OTA:  1.75 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Armed Forces Expeditionary Medal (1^st), Sea Service Deployment Ribbon (1^st), Battle “E” (1^ST)

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: 

0105xx:	Applicant subject to nonjudicial punishment for sleeping on “Sounding and Security.”  Award held in abeyance.  [Extracted from Commanding Officer’s letter of 020426.]

010719:	Applicant notified check cashing privileges have been suspended onboard USS O’KANE.

020111:	NJP for violation of UCMJ, Article 86 (2 specs): Absent without leave.
	Specification 1: On or about 2205, 011208, without authority, fail to go at the time prescribed to his appointed place of duty.  Specification 2: On or about 1335, 011226, without authority, fail to go at the time prescribed to his appointed place of duty.
Violation of UCMJ, Article 89: Disrespect toward a commissioned officer, on or about 1415, 011226, by saying to him, “I am tired of getting f__ by this division.  F__ this whole command.  I work my a__ off and I have been off this boat three f___ times,” and “F__ all of you.  I don’t f__ care,” or words to that effect.
Violation of UCMJ, Article 91: Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, on or about 2205, 011208, by saying to him “Shut the f__ up! And “I don’t give a f__”, or words to that effect.
	Violation of UCMJ, Article 92: (3 specs): Failure to obey order or regulation.  Specification 1: On or about 1400, 011110, was derelict in the performance of duties in that he willfully failed to show up for work.
	Specification 2: On or about 1400, 011110, fail to obey, by wrongfully sleeping in coveralls while in his rack.  Specification 3: On or about 1335, 011226, fail to obey, by not showing up.  Specification 4: On or about 1400, 011226, fail to obey a BM3 by ignoring him.
Violation of UCMJ, Article 117: Provoking speeches and gestures, “You can tell the Senior Chief he can suck my white d__, f__ the Master Chief, and that CDR S_,” or word to that effect.
Violation of UCMJ, Article 134: Threat, on or about 1400, 011226, wrongfully communicate to BM3 S_ C_ a threat to kill him if he doesn’t leave him alone.
Award:  Forfeiture of $584.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

020111:	Retention Warning:  Advised of deficiency (Article 86 (Absence without leave), Article 89 (Disrespect toward superior commissioned officer), Article 91 (Insubordinate conduct), Article 92 (Failure to obey order/regulation), Article 117 (Provoking speeches/gestures), and Article 134 (Threat, communicating)), notified of corrective actions,  assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020417:	NJP for violation of UCMJ Article 86, absence without leave, and Article 91, insubordinate conduct toward warrant officer, noncommissioned officer or petty officer.  Award:  Forfeiture of $300.00 pay per month for 2 months and 30 days restriction and extra duties.

020418:	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.

020418:	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.

020426:	Commanding Officer, USS O’KANE, informed Commander, Naval Personnel Command, of Applicant's general (under honorable conditions) discharge by reason of misconduct pattern of misconduct.  Commanding Officer’s comments:  “This discharge is a culmination of one year and six month effort to get FR D_ on the Navy’s team.  His pattern of misconduct began on in May of 2001 when his chain of command sent him to Mast after finding him asleep on watch as Sounding and Security.  I held this Mast in abeyance but transferred him to a new division in order to get a “fresh start” in the command.  While deployed his ability to stand watch and make morning musters was constantly in question.  His Chain of Command worked with him, but he never put forth any effort to correct his shortcomings.  In November 2001, I sent him to see the psychiatrist on USS PELELIU to ensure there were no underlying issues with his poor performance.  None were found.  In response to his continued poor performance he was taken to mast on 11 January 2002.  In March 2002 we were able to get him into the Bearings Course which convened in Pearl Harbor.  His entire Chain of Command including myself, XO and CMC attended his graduation ceremony and pledged our support to his career.  We also returned him to his original division at his request.  In less than two weeks, he had returned to his old habits of missing musters and being disrespectful to members of his Chain of Command.  We have tried to make him a productive member of the “Navy Team”, but he has refused to participate.  I have separated him under Pattern of Misconduct under General Conditions.”  
PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020426 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).  

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 a retention warning and nonjudicial punishment proceedings for violations of Articles 86, 89, 91, 92, 117 and 134 of the UCMJ.  The Applicant’s violations of Articles 89, 91 92 and 134 of the UCMJ are serious offenses for which a punitive discharge is authorized if awarded as part of the sentence upon conviction 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.   Relief is not warranted.

The Applicant contends that his discharge was improper because he was never allowed to “file grievances” and also implies that his discharge is inequitable because he was not allowed to transfer to a different division.  Neither the evidence of record, nor the statements and documentation provided by the Applicant demonstrate that he was denied the right to request mast.  Additionally, the Board found the Applicant’s contention, that his discharge is inequitable because the Applicant was not allowed to change divisions without merit.   Relief is not warranted.

The Applicant implies that his discharge is improper because he never committed the Article 91 violation which resulted in the award of nonjudicial punishment on 20020417.  The Applicant was awarded nonjudicial punishment on 20020417 for violations of Articles 86 and 91 of the UCMJ.  Neither the statements nor the documentation submitted by the Applicant demonstrated that the Applicant was either not responsible for  the misconduct for which he was subject to Captain’s Mast or that he should not have be held accountable for his actions.  Therefore, the Board found the Applicant’s issue without merit.  Relief denied.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted.  The Applicant was subject to nonjudicial punishment proceedings on 20020111 and 20020417.  The Applicant was issued a retention warning on 20020111.  The Applicant was notified of his Commanding Officer’s intention to initiate separation proceedings by reason of misconduct due to pattern of misconduct on 20020418.  On 20020426, the Commanding Officer directed the Applicant’s discharge by reason of misconduct due to pattern of misconduct.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  To change the Narrative Reason Separation would be inappropriate.  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.  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 a commissioned officer, Article 91, insubordinate conduct, Article 92, failure to obey order/regulation or Article 134, communicating a threat.

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

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