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NAVY | DRB | 2004_Navy | ND04-00342
Original file (ND04-00342.rtf) Auto-classification: Denied



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


ex-ATAR, USN
Docket No. ND04-00342

Applicant’s Request
The application for discharge review was received on 20031218. 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 20040910. 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)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as stated

 Applicant’s issues, as stated on the application:
1. “My discharge is improper because my service record wasn’t their in my board.
 The discharge was recieved after my 4 yr mark and I was on and 12 mth extension for a bonus.
 My discharge board member were a part of my DIV/Department associated with my shop (place of work).
My last evaluation report was changed by LN1 B_ to keep me from receiving my EAWS pin by making me sign a second evaluation report which I already sign one before which didn’t have the removal of my EAWS pin.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Fifteen pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     980728 - 981018  COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 981019               Date of Discharge: 021025

 Length of Service (years, months, days):
         Active: 04 00 07         Does not exclude lost time
          Inactive: None
Age at Entry: 19                          Years Contracted: 4 (12 months extension)

 Education Level: 10 GED           AFQT: 37
Highest Rate: AT3

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 3.00 (4)    Behavior: 2.00 (6)                OTA: 2.40

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM, AFEM (2), SSDR (3), OSR (3)

 Days of Unauthorized Absence: 48
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).
Chronological Listing of Significant Service Events :

020328:  NJP for violation of UCMJ, Article 86 (2 specs): Unauthorized absence on 020318 and 020319.
         Award: Forfeiture of $250 per month for 2 months, restriction and extra duty for 10 days, reduction to E-3. Reduction suspended for 6 months. No indication of appeal in the record.
020509:  Vacate suspended reduction to E-3 awarded at CO’s NJP dated 020328 due to continued misconduct.
020701:  Applicant to UA.
020807:  Applicant declared a deserter.
020819:  Applicant from UA.

 020822:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
020917:  Summary Court-Martial.
          Charge I: violation of the UCMJ, Article 86:
          Specification 1: Failure to go to appointed place of duty on 0630, 020618.
         Specification 2: Failure to go to appointed place of duty on 0700, 020625.
          Specification 3: Failure to go to appointed place of duty on 0700, 020626.
         Specification 4: Failure to go to appointed place of duty on 0700, 020627.
         Specification 5: Unauthorized absence from 0700, 020701 to 1130, 020819 (48 days/surrendered).
          Charge II: violation of the UCMJ, Article 112A:
          Specification: Wrongfully use marijuana on 020619.
         Finding: to Charge I and the specification thereunder, guilty. Charge II and the specification thereunder, not guilty.
         Sentence: Forfeiture of $736.00 per month for 1 month, confinement for 30 days, reduction to E-1.
          CA action 021004: Sentence approved and ordered executed.

020917:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
021002:  Results of Prisoner Disposition Board ICO [Applicant]
          The Board found [Applicant’s] behavior to be curt, detached and ambiguous with reasons pertaining to his unauthorized absence. He was quick to lay blame on everyone but himself for his actions, displaying no remorse and accepting no responsibility for what happened. For the amount of time he has been on active duty he has little to no understanding of the chain of command and his position in it. [Applicant] is immature, inpatient and quick to take the wrong path if things do not happen on his time table and the Board believes that if retained and met with a similar circumstance he would re-offend.
021016:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense, that the misconduct warranted separation, and recommended discharge general (under honorable conditions).

021021:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. Commanding Officer’s comments (verbatim): During ATAR S_'s ( Applicant 's) tenure at NAS Whidbey Island, he has been a serious administrative burden to both NAMTRAU and AIMD. He was awarded nonjudicial punishment at NAMTRAU that included a suspended punishment of reduction in rate to E-3 prior to his transfer to AIMD. He was initially placed in the 600 Division workcenter to perform his duties as an Aviation Electronics Technician. However, as a result of ATAR S_’s ( Applicant 's) unwillingness to report to work on time as set forth by his superiors and his inability to get along with other co-workers within his work center, his suspended punishment of reduction in rate was vacated. At AR S_ (Applicant) was subsequently transferred to the First Lieutenant: Division in an attempt to rehabilitate and re-instill discipline in him. This attempt had no positive effect on ATAR S_ (Applicant) as he continued to display substandard performance and conduct. This trend was the direct result of his Summary Courts-Martial conviction on 17 September 2002 for multiple unauthorized absences resulting in him being placed in a deserter status.
On 16 October 2002, an administrative separation board was held. After reviewing all exhibits and hearing testimony from several witnesses, the Board stated that ATAR S_ (Applicant) possesses the knowledge and the ability to perform his duties as an Aviation Electronics Technician in addition to complying with Navy rules and regulations, yet chooses not to conform. Based on this inference, the Board determined it would be in the best interest of the service and the command to separate ATAR S_ (Applicant) with a General (Under Honorable Conditions) discharge. The Board further determined that by retaining him on active duty, ATAR S_ (Applicant) would continue to have a negative impact on the command’s mission and continue to disregard rules and regulations set forth by his superiors, in addition to substantially decreasing the morale and welfare of his co-workers.
After careful consideration of ATAR S_’s ( Applicant 's) overall performance and conduct during his tenure in the naval service, the recommendations of his chain of command, and the recommendation to separate ATAR S_ (Applicant) by the administrative board, I have concluded ATAR S_ (Applicant) exhibits no potential for further naval service. I concur with the Board’s recommendation that ATAR S_ (Applicant) be separated from the naval service for Misconduct Due to Commission of a Serious Offense; however, I oppose the Board’s recommendation of the characterization of service. As a result of ATAR S_ ( Applicant 's) continued display of negative attitude towards his superiors and subordinates alike, I recommend separating ATAR S_ from the naval service as expeditiously as possible.
021021:  Commander, Electronic Attack Wing, U.S. Pacific Fleet directed the Applicant's discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021025 with a general (under honorable conditions) for misconduct due to commission of a serious offense (A & B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).
Issue 1. When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. A General 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 nonjudicial punishment and court-martial proceedings for seven violations of Article 86 of the UCMJ. 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.

The statements and documents provided by the Applicant do not support his claims of impropriety or refute the presumption of regularity in this case. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The Applicant enlisted for four years on 19 Oct 98 and extended that enlistment by 12 months. There is no evidence of impropriety or inequity in the conduct of the Applicant’s Administrative Separation Board. Relief is not warranted.

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. 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 02 until Present, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B. In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 86, for unauthorized absence for a period in excess of 30 days, if adjudged at a Special or General Court Martial

C. 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.

D. 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.
E. 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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