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NAVY | DRB | 2003_Navy | ND03-00612
Original file (ND03-00612.rtf) Auto-classification: Denied


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

ex-AOAA, USN
Docket No. ND03-00612

Applicant’s Request
The application for discharge review was received on 20030226. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests 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 20040128. 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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“1. I was told at my final Captain’s mast appearance that I would not receive this type of discharge.”

“2. At my first Captain’s Mast appearance it was not investigated thoroughly enough and I felt pressured by certain individuals to plead guilty rather than appeal the matter. The command I was stationed at did not make everything clear when being charged with breaking an article. I did have an anger management problem but I have worked hard to overcome that and I am asking for a second chance to prove that I can be a good sailor. I do not want the mistakes I made when I was still learning about the world to ruin the rest of my life. I am also apologizing for any unhonorable actions I did commit and would like to ask you please consider my request.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     970626 - 970702  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 970703               Date of Discharge: 010620

 Length of Service (years, months, days):

         Active: 03 11 18
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4

 Education Level: 12                        AFQT: 67

 Highest Rate: AOAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA*                 Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: AFEM, SSDR (2), MUC (2), CUC, FLOC

 Days of Unauthorized Absence: 17

*No Marks Available for review

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).


 Chronological Listing of Significant Service Events :

991123:  NJP for violation of UCMJ, Article 86: Unauthorized absence; violation of UCMJ, Article 91: Disrespect toward a Petty Officer; violation of UCMJ, Article 134: (2 specs), wrongfully communicate a threat.
         Award: Forfeiture of $537.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
000106:  NJP for violation of UCMJ, Article 86: Fail to go to appointed place of duty on 8 & 16 December 1999.
Award: 3 days bread and water. No indication of appeal in the record.
001018:  NJP for violation of UCMJ, Article 128: Assault; violation of UCMJ, Article 134: Communicate a threat.
Award: Forfeiture of $563.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
001018:  Retention Warning: Advised of deficiency (You were found guilty of assault, and communicating a threat), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010222:  NJP for violation of UCMJ, Article 91: Disrespectful in language toward a Petty Officer; violation of UCMJ, Article 128: Assault; violation of UCMJ, Article 134: (2 specs), wrongfully communicate a threat, drunk and disorderly.
         Award: Forfeiture of $581.00 pay per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
010508:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ in your current enlistment and misconduct due to commission of a serious offense as evidenced by your NJPs of 991123, 001018, and 010222.
010508:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation

010522:  Commanding Officer recommended to Commander, Cruiser-Destroyer Group THREE to discharge Applicant under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.

010620:  Applicant discharged other than honorable by reason of pattern of misconduct (from DD Form 214).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010620 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).

Issues 1 and 2. The Board found no indication of an impropriety or inequity concerning the Applicant’s Captain’s Masts and processing for administrative separation. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor. T he Applicant’s service was marred by award of nonjudicial punishment (NJP) on four occasions and an adverse counseling entry on another occasion. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. An upgrade is inappropriate.

The Applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident during the Applicant’s enlistment. Additionally, 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 the service. Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his 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. 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 view DoD Directive 1332.28 and other Decisional Documents by going online at “ afls14.jag.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:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023      

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