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NAVY | DRB | 2004_Navy | ND04-00126
Original file (ND04-00126.rtf) Auto-classification: Denied


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

ex-AA, USN
Docket No. ND04-00126

Applicant’s Request
The application for discharge review was received on 20031023. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing. The Applicant listed the Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040720. 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.

Issues submitted by Applicant’s counsel/representative ( Veterans of Foreign Wars):
1. “Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application. His records were reviewed on December 13, 2003 and the following comments are hereby submitted:

We concur with the Applicant’s contention that his discharge be upgraded.

 We refer this case to the Board for their careful and compassionate consideration and request the Applicant's discharge be reviewed for upgrading his discharge to General.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Statement in support of claim, dated October 15, 2003
Statement in support of claim, dated October 15, 2003
Applicant’s DD Form 214
Letter from Applicant, dated January 12, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     890512 - 890522  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 890523               Date of Discharge: 930205

 Length of Service (years, months, days):

         Active: 03 08 13         Does not exclude lost time
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 25

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.20 (2)    Behavior: 2.90 (2)                OTA: 3.10

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM

 Days of Unauthorized Absence: 4

 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 :

890512: Applicant briefed on Navy’s policy of drug and alcohol abuse.





890918:  NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance on 890907.
         Award: Forfeiture of $323.10 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
910123:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0645, 901006 to 0645, 901010 (4 days/surrendered), violation of UCMJ, Article 92: Failure to obey lawful order on 901024, to wit: to return his belongings back to his original room.
         Award: Forfeiture of $100 per month for 2 months, extra duty for 30 days, reduction to AR. Reduction suspended for 6 months. No indication of appeal in the record.
910125:  Retention Warning from HELMINERON FOURTEEN, NAVAL AIR STATION, Norfolk, VA: Advised of deficiency (Your substandard performance and misconduct due to a pattern of misconduct as evidenced by your failure to go to appointed place of duty, failure to obey lawful orders, unauthorized absence and wrongful use of controlled substance, marijuana.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

911010:  NJP for violation of UCMJ, Article 86: Fail to go to appointed place of duty, to wit: PRT makeup, violation of UCMJ, Article 113: Misbehavior of sentinel by leaving his post before being properly relieved, violation of UCMJ, Article 117: Provoking gestures and speeches by wrongfully using provoking words, to wit: “I hate white people and I beat them up. White motherfuckers.”, violations of UCMJ, Article 134: Drunk and disorderly conduct.
         Award: Forfeiture of $197 per month for 7 days, restriction and extra duty for 14 days. Forfeiture suspended for 3 months. Restriction suspended for 3 months. No indication of appeal in the record.
920602:  Special Court Martial:
         Charge I: violation of the UCMJ, Article 92:
         Specification: Fail to obey a lawful general order on 920113.
         Charge II: violation of the UCMJ, Article 107:
         Specification: False official statement on 920123.
         Charge III: violation of the UCMJ, Article 86 (2 specs):
         Specification 1: Absent from unit from 0600 to 0645, 020121.
         Specification 2: Absent from unit from 1045 to 1420, 920218.
         Charge IV: violation of the UCMJ, Article 91:
         Specification: Disrespectful in language and deportment toward a superior petty officer on 920111.
         Findings: to Charge I, II, III, IV and specifications thereunder, guilty.
        

Sentence: CHL for 40 days, forfeiture of $100 per month for 2 months.
          CA 920717: Sentence approved and ordered executed

920602:  Applicant to confinement.

920701:  Transient Personnel Unit, Norfolk, VA notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to pattern of misconduct as evidenced by service record entries.
920702:  Applicant released from confinement and placed on administrative leave.

920702:  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.
921217:  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 a serious offense.

930114:  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 19930205 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).

Issue 1. 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 three occasions, one special court-martial and adverse counseling entries on other occasions. 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. Relief denied.

 The Applicant should be aware that, with respect to nonservice-related administrative matters, i.e., VA benefits, educational pursuits, and especially civilian employment the Board has no authority to upgrade a discharge. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. 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 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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