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NAVY | DRB | 2004_Navy | ND04-00003
Original file (ND04-00003.rtf) Auto-classification: Denied


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

ex-BMSR, USNR
Docket No. ND04-00003

Applicant’s Request
The application for discharge review was received on 20030926. 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 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

Applicant’s issues, as stated on the application:

1. “After receiving a boot camp hair cut in RTC Great Lakes, the barber’s didn’t clean the clippers causing keloids to interup my neck and afe. I’ve been seeking treatment for years just for comfort now I have no insurance to cover this problem that will last the rest of my life. Back spasm; occur on a daily basis. I made multiple complaints before being discharged and all were ignored. Proper lifting and 2 mans rules were often ignored on the Phil-Sea and now I’m respectfully asking for some help so I can support my 6 kids.”

 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)     None
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 860918               Date of Discharge: 920529

 Length of Service (years, months, days):

         Active: 05 08 11
         Inactive: 00 00 06

 Age at Entry: 20                          Years Contracted: 4 (35 months extension)

 Education Level: 12                        AFQT: 24

 Highest Rate: BM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.63 (6)    Behavior: 3.60 (6)                OTA: 3.66

 Military Decorations: None

 Unit/Campaign/Service Awards: BATTLE”E”, SSDR, USCGS, ESWS qual, OSR, SASM(wb*), NDSM, NUC

 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 :

860924:  Ordered to active duty for 36 months under the Active Mariner program.
880107:  NJP for violation of UCMJ, Article 134: Conduct prejudicial to good order and discipline.
         Award: Restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.

880306:  Retention Warning from [USS CHARLES F. ADAMS (DDG-2)]: Advised of deficiency (Drug abuse (cocaine) on 880218 and disorderly conduct on 880101), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880310:  NJP for violation of UCMJ, Article 112a: Wrongfully use cocaine a controlled substance.
         Award: Forfeiture of $335.00 pay per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
880407:  NJP for violation of UCMJ, Article 89: Disrespect towards a Commissioned Officer.
         Award: Restriction and extra duty for 45 days. No indication of appeal in the record.

910116:  NJP for violation of UCMJ, Article 123: Uttering checks without sufficient funds.
         Award: Reduction to E-3. No indication of appeal in the record.

910121:  Retention Warning from [USS PHILIPPINE SEA]: Advised of deficiency (Violation of Article 123, UCMJ, 12 Specification (Drawing checks without sufficient funds), resulting in CO’s NJP being held on 910116), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920306:  Civil Conviction: [ST John County, Florida] Plead no contest to unlawfully carrying a loaded, concealed firearm a violation of Florida law.
 Sentence: Probation for 6 months and $250.00 fine.
920326:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
         Award: Reduction to E-2, extra duty for 30 days. No indication of appeal in the record.

920416:  USS PHILIPPINE SEA (CG-58) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to drug abuse, and misconduct due to commission of a serious offense as evidenced by his punishment under the UCMJ in his current enlistment.
920416:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

920420:  NJP for violation of UCMJ, Article 86: (2 Specifications), Absence from unit organization, violation of UCMJ, Article 107: False official statement.
Award: Restriction for 14 days, reduction to E-1. No indication of appeal in the record.
920424:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to drug abuse, and misconduct due to commission of a serious offense as evidenced by his punishment under the UCMJ in his current enlistment.

920520:  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 19920529 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 available 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 Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as other than honorable 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 6 occasions for violations of the Uniform Code of Military Justice (UCMJ). The applicant’s misconduct included violations of articles 86, 89, 107, 112a, 123 and 134. An upgrade to honorable would be inappropriate. Relief is therefore 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 additional documentation to support any claims of post-service accomplishments or any other evidence relating 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, 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 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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