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NAVY | DRB | 2003_Navy | ND03-01173
Original file (ND03-01173.rtf) Auto-classification: Denied


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


ex-BMSA, USN
Docket No. ND03-01173

Applicant’s Request
The application for discharge review was received on 20030626. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant designated an active duty military member as the representative on the DD Form 293. In the acknowledgement letter, the Applicant was advised that such designation of an active duty member may be prohibited by statute and requested that the designated counsel obtain legal advice before undertaking such representation.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040514. 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)/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 BELIEVE I WAS NOT GIVEN THE PROPER ADVISE ABOUT MY CASE BY MY COMMAND.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214 (Member’s 4 & 1)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     980925 - 980930  COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 981001               Date of Discharge: 021216

 Length of Service (years, months, days):
         Active: 04 02 16
          Inactive: None
Age at Entry: 19                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 80
Highest Rate: BM3

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 3.75 (4)    Behavior: 2.75 (4)                OTA: 3.17

 Military Decorations: None
Unit/Campaign/Service Awards: MUC, Navy “E” Ribbon (2), GCM, NSM, AFEM, SSDR(2)

 Days of Unauthorized Absence: NONE
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).
Chronological Listing of Significant Service Events :

021001:  Extended enlistment for 24 months.
021015:  NJP for violation of UCMJ, Article 134: Urinating in shower; violation of UCMJ, Article 91: Willful disobedience of a Chief Petty Officer.
         Award: Forfeiture of $784.25 pay per month for 1 month, restriction and extra duty for 40 days, reduction to E-3 (suspended until 03JAN30). No indication of appeal in the record.
021015:  Retention Warning: Advised of deficiency (violations of UCMJ, Articles 134 and 91.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

021107:  NJP for violation of UCMJ, Article 86: Abandoning watch.
         Award: Forfeiture of $100 pay per month for 2 months, restriction and extra duty for 35 days, reduction to E-2. No indication of appeal in the record.
021126:  Applicant notified of intended recommendation for discharge with a General (under honorable conditions) by reason of misconduct due to a pattern of misconduct.
021129:  Applicant advised of rights and having consulted 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

021207:  Commanding Officer, USS SHILOH (CG 67) directed the Applicant's discharge with a General (under honorable conditions) by reason of misconduct due to a pattern of misconduct.
030106:  CNMPC directed the PSD NAVSTA San Diego, CA to issue DD Form 215, correcting the authority and the reason.

 030109:  DD Form 215 issued correcting the Separation Authority to: MILPERSMAN 1910-140 vice 190156, and the Narrative Reason for Separation to: Pattern of Misconduct vice misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021216 with a General (Under 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).
Issue 1. The Applicant claims that he was not provided the proper advice regarding his administrative separation from his command. The record does not contain any evidence nor did the Applicant provide any evidence, to support this assertion. T he 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.

When a sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as general (under honorable conditions) 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 the award of nonjudicial punishment (NJP) on two occasions for three violations of the Uniform Code of Military Justice (UCMJ). An upgrade to honorable 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. The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time. 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 Present, 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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