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NAVY | DRB | 2004_Navy | ND04-00472
Original file (ND04-00472.rtf) Auto-classification: Denied


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

ex-ADAR, USN
Docket No. ND04-00472

Applicant’s Request
The application for discharge review was received on 20040128. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record 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 20040922. 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. “My issues with my discharge are that I was unjustly prosecuted. Because if I asked questions in the course of my duties I was aqused of talking back to surperviser I was the only one reported as UA even if given permission by surperviser”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     871208 - 880906  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 880907               Date of Discharge: 911224

 Length of Service (years, months, days):

         Active: 03 03 18
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 33

 Highest Rate: ADAA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.60 (3)    Behavior: 2.60 (3)                OTA: 2.53

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM with Bronze Star, SSDR

 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 :

900328:  NJP for violation of UCMJ, Article 86: Fail to go to appointed place of duty at 0700, 900225, Unauthorized absence from 1630-2130, 900225.
         Award: Forfeiture of $405 per month for 1 month, correctional custody for 30 days. Forfeiture suspended for 3 months. No indication of appeal in the record.
900328:  Retention Warning from USS ABRAHAM LINCOLN (CVN 72): Advised of deficiency (Unauthorized absence from appointed place of duty on 900225 and unauthorized absence from 1630-2130, 900225.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
910125:  NJP for violation of UCMJ, Article 86 (4 specs): (1) Unauthorized absence 0645-0720, 901130, (2) Unauthorized absence 0645-0715, 901204, (3) Unauthorized absence 0645-0725, 901205, (4) Absence from appointed place of duty on 1100, 901207, violation of UCMJ, Article 92: Dereliction of duty by failing to maintain possession of ships ID card on 901210.
         Award: Forfeiture of $376 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
911119:  NJP for violation of UCMJ, Article 86: Absence from appointed place of duty from 0715 to 0935, 911028.
         Award: Forfeiture of $100 per month for 1 month. No indication of appeal in the record.
911122:  USS ABRAHAM LINCOLN (CVN 72) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
911122:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
911204:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

911212:  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 19911224 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: The Applicant contends that his discharge was the result of him being unfairly prosecuted. To permit relief, an impropriety or inequity must be found to have existed during the period of enlistment under review. There was nothing in the record, nor did the Applicant provide any credible evidence, to indicate there existed an error of fact, law, procedure, or discretion at the time of discharge. Likewise, there was nothing in the record, nor did the Applicant provide any credible evidence, to indicate there existed an error in equity at the time of his discharge. 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 three nonjudicial punishment proceedings for multiple violations of Articles 86 and 92 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. 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. 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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