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NAVY | DRB | 2003_Navy | ND03-01471
Original file (ND03-01471.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND03-01471

Applicant’s Request
The application for discharge review was received on 20030910. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. 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 20040628. 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/Misconduct - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

No issues were submitted by the Applicant.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Copy of Information Pertaining to Review Based upon Post Service Conduct
Employment Reference Letter dated October 5, 2000
Monthly Performance Bonus Letter dated October 26, 2000
Letter of Appreciation dated October 15, 1999
Copy of Customer Service Award
Copy of Certificate of Completion (A 200 Series of Asset Protection Training)
Copy of Certificate of Completion (Truck Driving Occupation Course)
Copy of Certificate of Completion from City of San Diego Police Dept (Basic Bicycle Handling 10 hours)
Copy of Memorandum for Letter of Commendation dated March 11, 1997
Copy of Memorandum for Letter of Commendation dated November 14, 1996
Letter of Appreciation dated September 3, 1996
Copy of Certificate of Completion (Juvenile Counselor Basic Core Course)
Copy of Certificate of Completion Notification (Power of Arrest)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     890714 - 891031  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 891101               Date of Discharge: 930524

 Length of Service (years, months, days):

         Active: 03 06 24
         Inactive: None

 Age at Entry: 27                          Years Contracted: 4

Education Level: 12                        AFQT: 32

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.15 (4)    Behavior: 3.20 (4)                OTA: 3.20

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM(wb*), SSD, BATTLE”E”, MUC

 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 :

901005:  NJP for violation of UCMJ, Article 134: False or unauthorized pass on or about 900905.
         Award: Forfeiture of $200.00 pay per month for 2 months, restriction and extra duty for 30 days, reduction to E-2. No indication of appeal in the record.

920810:  Retention Warning from [USS MCKEE (AS-41)]: Advised of deficiency (Violation of the UCMJ, Article 92-Failure to obey lawful order from Security Department, NAVSTA, SDIEGO, on or about 920711, violation of Article 91-Insubordinate conduct towards warrant officer on 920716, violation of Article 128-Assault upon military police personnel (4 specifications) on 920711, and violation of Article 134-Disorder conduct on 920711, as evidenced by CO’s NJP held on 920810), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920810:  NJP for violation of UCMJ, Article 90: Failure to obey a lawful order, 920711, violation of UCMJ, Article 91: Insubordinate conduct towards a warrant officer, 920716, violation of UCMJ, Article 128: (4 specification), Specification 1: Assault a military police by poking him in the chest with a cane, 920711 Specification 2: Assault a military police by swinging his cane, 920711, Specification 3: Assault a military police by poking him in the chest with a cane, 920711, Specification 4: Assault a military police by swinging his cane, 920711, violation of UCMJ, Article 134: Disorder conduct, 920711.
         Award: Correctional Custody for 30 days, forfeiture of $300.00 pay per month for 2 months, oral reprimand, reduction to E-2 (suspended for 6 months). No indication of appeal in the record.

921026:  Retention Warning from [USS MCKEE (AS-41)]: Advised of deficiency (Violation of the UCMJ, Article 90-Failure to obey lawful order from Security Department, NAVSTA, SDIEGO, on or about 920711, violation of Article 91-Insubordinate conduct towards warrant officer, 920716, violation of Article 128-Assault upon military police personnel (4 specifications) on 920711, violation of Article 134-Disorderly conduct on 920711, as evidenced by CO’s NJP held on 920810; violation of UCMJ, Article 86-Failure to go at the time prescribed to appointed place of duty, 920928 and violation of UCMJ, Article 90-Willful disobedience of a superior commissioned officer, 920928, as evidenced by CO’s NJP held on 921026), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

921026:  NJP for violation of UCMJ, Article 86: Failure to go at the time prescribed to appointed place of duty, to wit: Delinquent Study, 1745, 920928, violation of UCMJ, Article 90: Willful disobedience of a superior commissioned officer on or about 920928.
         Award: Oral reprimand, restriction and extra duty for 14 days. No indication of appeal in the record.

930121:  NJP for violation of UCMJ, Article 91 (2 Specifications), Specification 1: On or about 921126, disrespectful in language toward a superior chief petty officer, Specification 2: Disrespectful in language toward a superior petty officer; violation of UCMJ, Article 128: On or about 921126 assault upon a person in the execution of law enforcement duties; violation of UCMJ, Article 134: Disorderly conduct on or about 921126.
         Award: Forfeiture of $400.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
930124:  [USS MCKEE (AS-41)] notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by CO’s NJP held on 930121, 921026, 920810, and 901005; and by reason of Misconduct due to commission of a serious offense to wit: Violation of UCMJ, Article 91-disrespectful in language toward a superior chief petty officer, Specification 2: Disrespectful in language toward a superior petty officer; violation of UCMJ, Article 128-assault upon a person in the execution of law enforcement duties, as evidenced by CO’s NJP held on 930121; violation of UCMJ, Article 90-willful disobedience of a superior commissioned officer, as evidenced by CO’s NJP held on 921026; violation of the UCMJ, Article 92-failure to obey a lawful order, violation of UCMJ, Article 91-disrespect in language toward a warrant officer; and violation of UCMJ, Article 128-assault upon military police (4 specifications), as evidenced by CO’s NJP held on 920810; and violation of UCMJ, Article 134-wrongful use with intent to deceive another’s military identification card, as evidenced by CO’s NJP held on 901005.
930203:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
930413:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct, had committed eight serious offenses and that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

930422:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of serious offense.

930512:  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 19930524 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).

The Applicant introduced no decisional issues for consideration by the Board.

 When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. An Under Other Than Honorable Conditions 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 four nonjudicial punishment proceedings for fourteen violations of the UCMJ to include violations of Articles 86, 90, 91, 128 and 134. 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. Relief is not warranted.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted. There is no evidence of impropriety or inequity in the Applicant’s discharge. The Applicant’s misconduct is clearly documented. Therefore, relief is 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, Change 5, effective 05 Mar 93 until 21 Jul 94), 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 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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