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NAVY | DRB | 1999_Navy | ND99-00587
Original file (ND99-00587.rtf) Auto-classification: Denied


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

ex-FR, USN
Docket No. ND99-00587

Applicant’s Request
The application for discharge review, received 990324, requested that the characterization of service on the discharge be changed to Honorable. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 991221. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of Misconduct, authority: NAVMILPERSMAN, Article 3630600.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. This is about the 3 Marines who attacked me while coming out of dance held in Guam, as stated in DD-Form 149, I did not have any fault in this fight. I did not even know those people I was left with a broken nose & a cut on my back & to this day I suffer. I was to blame for this & given an – NJP – I would greatly appreciate your consideration.

2.       I was given another NJP while out to see on my ship (USS – Haleakala AE-25) I
 was eating on the mess decks in the afternoon minding my own business when I got up to put my tray where they clean them I was pushed against a wall & thrown to the ground by one of my shipmates & struck in the face the security came & seperated him from me- The sailor later confessed he was confused & took his anger out on me because of his problems. I still received the NJP although it was not my fault. That was not fair on their part. Later a couple months passed & the sailor who hit me said he was sorry & wanted to be my friend then two weeks passed & my friend drowned on the Island of Guam. I missed him dearly.

3. I would greatly appreciate your consideration on the change of my discharge. I served my country with respect & honor in the persian Gulf was receiving numerous medals & ribbons accommodations. I sustained an injury to my lower back while in the gulf & I need medical help that is why I need my discharge to be changed I know it was not my fault. I respect you all with all my heart. GOD BLESS THE U.S.A.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        NONE
         Inactive: USNR (DEP)     891031 - 900702  COG

 Period of Service Under Review :
Date of Enlistment: 900703               Date of Discharge: 920930

 Length of Service (years, months, days):

         Active: 02 02 28
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 25

 Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.8 (1)     Behavior: 3.8 (1)                 OTA: 3.8

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT – Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

910614:  NJP for violation of UCMJ, Article 128: Assault.
         Award: Forfeiture of $150 per month for 2 month(s), restriction and extra duty for 15 days, reduction to E-1 (suspended for 4 months). No indication of appeal in the record.
920706:  Retention Warning from USS HALEAKALA (AE 25): Advised of deficiency (Attempted assault, communicating racial slurs, disrespect toward a petty officer and disorderly conduct, drunkenness), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920710:  NJP for violation of UCMJ, Article 128: Attempted assault, violation of UCMJ Article 134: Communicating racial slurs, violation of UCMJ, Article 91: Disrespect toward a Petty Officer, violations of UCMJ, Article 134: Disorderly conduct, drunkenness.
         Award: Forfeiture of $450 per month for 2 months, restriction and extra duty for 60 days. No indication of appeal in the record.
920807:  NJP for violation of UCMJ, Article 128 (3 Specs): Assault, violation of UCMJ Article 134 (3 Specs): (spec 1) Disorderly conduct, drunkenness, (spec 2) communicating racial slurs, (spec 3) incapacitation for performance of duties.
         Award: Forfeiture of $450 per month for 2 month(s), restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
920909:  NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 91: Disrespectful language toward a Petty Officer, violation of UCMJ, Article 134: Indecent language toward a Petty Officer, violation of UCMJ, Article 117: Provoking words.
         Award: Forfeiture of $482 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
920811:  USS HAKEAKALA notified applicant of intended recommendation for discharge under Other Than Honorable conditions by reason of Misconduct due to a Pattern of misconduct and Commission of a serious offense as evidenced by Commanding Officer’s non-judicial punishments on 14JUN91, 10JUL92, and 07AUG92.
920811:          Applicant advised of his rights and having elected not to consult certified under UCMJ, Article 27B, elected to waive all rights

920813:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of Misconduct due to a Pattern of misconduct and Commission of a serious offense. Commanding Officer’s comments (verbatim): FR Reyna has continually demonstrated a total failure to realize any sense of personal responsibility, obligation, or growth. His maturity, self-control, and ability to achieve even the most basic, positive interpersonal relationship, is completely lacking. He has regularly proven himself a threat to good order and discipline, and is a considerable administrative burden to this command. He demonstrates no potential for future, successful military service. I most strongly recommend FR Reyna’s separation from the naval service as warranted by his service record.

920909:  BUPERS directed the applicant's discharge under Other Than Honorable conditions by reason of Misconduct due to a Pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 920930 under Other Than Honorable conditions for Misconduct due to a Pattern of misconduct (A). The Board presumed regularity in the conduct of governmental affairs (B). 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).

In the applicant’s issues 1 and 2, the Board determined these issues are without merit. The applicant describes two fights he was involved in, while in military service. These statements are not supported by any documentation. The applicant was discharged for misconduct, due to a pattern of misconduct. He went to Captain’s Mast on four separate occasions, received and violated a retention warning, then was discharged. The discharge was proper and equitable. Relief denied.

In the applicant’s issue 3, the Board determined this issue is without merit. The applicant claims he served his country with respect and honor. Honorable service is not characterized by violating the UCMJ multiple times. Additionally, the applicant was given an opportunity to start fresh when issued the retention warning but he violated the conditions of that warning also. He clearly established a pattern of misconduct, in his two years of military service. His discharge was proper and equitable. Relief denied.

The following is provided for the applicant’s edification. There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life, subsequent to leaving military service. The Board reviews the propriety (did the Navy follow its own rules in processing the applicant for discharge) and equity (did the applicant receive a discharge characterization in keeping with Navy guidance or was the characterization typical of other service members being separated for the same reason) of each applicant’s discharge. This applicant’s discharge was proper and equitable. Additionally, the NDRB is authorized to award clemency for post-service factors (what has the applicant done since discharge to become a contributing member of his/her community and to society in general). Those factors include but are not limited to the following: Evidence of continuing educational pursuits (transcripts, diploma, degree or vocational-technical certificates), a verifiable employment history (letter of recommendation from employer), documentation of community service (letter from activity/community group), certificate of non-involvement with civil authorities (police records check) and proof of not using drugs (detoxification certificate). The applicant has not provided any documentation of good character and conduct that would warrant an upgrade to his discharge. The applicant is encourage to continue begin to establish a reputation of good character. He is also reminded that he remains eligible for a personal appearance hearing. Documentation to support any claims of good character are a must . An application must be received by the NDRB within fifteen years from the date of his discharge or it will be denied. It is advisable to have legal representation at the hearing.

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C, effective 15 Aug 91 until
04 Mar 93), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A PATTERN OF MISCONDUCT.

B. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809

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:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  Washington Navy Yard
                  720 Kennon St SE Rm 309
                  Washington, D.C. 20374-5023     


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