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NAVY | DRB | 2003_Navy | ND03-01215
Original file (ND03-01215.rtf) Auto-classification: Denied


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

ex- GMSR, USN
Docket No. ND02-01215

Applicant’s Request
The application for discharge review was received on 20030710. 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 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 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: 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. “The discharge is improper because it completely over exceeds the nature of the offence.

2. Prior to the third mass hearing the Applicant was not granted time to provide sufficient info concerning a minor (non-drug related) traffic violation, including the use of false info used to prosecute and discharge the Applicant.

3. While serving on the USS DD-964, continuous disrespect along with unusual punishment led to a separation code of “HKA.”
[Applicant marked the block indicating additional issued as an attachment to application, but none were found.]

 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):
         Inactive: USNR (DEP)     000420 - 000517  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 000518               Date of Discharge: 020719

 Length of Service (years, months, days):

         Active: 02 02 02
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (12 months extension)

 Education Level: 897.20 hours Job Corps Center
AFQT: 41

 Highest Rate: GMSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.0 (1)     Behavior: 1.0 (1)                 OTA: 1.50

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, AFEM

 Days of Unauthorized Absence: None

 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 :

000420:  Waiver of pre-service marijuana usage and possession of stolen property granted for entry.

011012:  NJP for violation of UCMJ, Article 92: Dereliction of duty; violation of UCMJ, Article 107: False official statement.
         Award: Correctional Custody for 30 days. No indication of appeal in the record.
020207:  NJP for violation of UCMJ, Article 86 (2 Specs): Unauthorized absence (total of 3 hours); violation of UCMJ, Article 121 (2 Specs): Larceny; violation of UCMJ, Article 134 (2 Specs): Theft of services.
         Award: Forfeiture of $650 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.

Undated:         Retention Warning: Advised of deficiency (violation of UCMJ, Articles 86, 121, and 134), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020604:  NJP for violation of UCMJ, Article 134: Disorderly conduct.
Award: Restriction and extra duty for 00 days, reduction to E-1. No indication of appeal in the record.
020605:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

020605:  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 submit a statement.

020610:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. Commanding Officer’s comments (verbatim): [Seaman Recruit D_ (Applicant) has the ability and technical knowledge of a seasoned Seaman. However, his immaturity, poor conduct, disrespectful attitude and inability to develop working relationships with shipmates have made him an extreme punitive, administrative and supervisory burden for my crew. The effort to rehabilitate GMSR D_ (Applicant) included an extensive series of formal and informal counseling at every level of the Chain of Command. He was ordered for 30 days to the Correctional Custody Unit (Where it was noted his poor attitude made continued Naval Service questionable) and assigned to two different departments. A series of CO’s NJP actions both before and after the CCU assignment did not persuade him to change his behavior. His Chain of Command has continuously worked to help him to overcome his deficiencies and to concentrate on developing priorities. Unfortunately, he refuses to cooperate and repeatedly has been belligerent and blatantly disrespectful. I have exhausted ever means of corrective measure and have allowed him ample time to adapt to a shipboard environment. All proved futile. I refuse to allow SR D_ (Applicant) to work unsupervised and will not allow him access to the ship’s armory or weapons control points simply because I can not trust that he would not attempt a vindictive act (loss or damage of a weapon or ammunition) to demonstrate his belligerence and disdain for his peers. I am convinced that he has no potential for further service and recommend processing for administrative separation per MILPERSMAN 1910-140 for reason of Misconduct due to a Pattern of Misconduct with an “Other Than Honorable” Discharge”.

020628:  COMCARGRU THREE 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 20020719 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 1-3. The Applicant's other than honorable discharge was proper and equitable. 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. There is no evidence of impropriety, inequity or procedural irregularities in the Applicant's discharge. The Applicant's misconduct is clearly documented. He acknowledged and waived his rights to administrative review. He was notified that by waiving his rights and accepting an other than honorable discharge, he could possibly encounter significant difficulties in obtaining employment and other benefits. The Applicant was afforded the appropriate due process during the processing of his case. An upgrade of the Applicant's discharge to an honorable characterization is not warranted. Relief denied.

The following is provided for the edification of the applicant. 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 naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.

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), 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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