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NAVY | DRB | 2004_Navy | ND04-00623
Original file (ND04-00623.rtf) Auto-classification: Denied


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

ex-PNSA, USN
Docket No. ND04-00623

Applicant’s Request
The application for discharge review was received on 20040303. 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 20041008. 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)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “During my first term on active duty, I worked hard as a boatman’s mate and received an honorable discharge. My second term on active duty as a personnel man was difficult. I got sidetracked with educational goals; which forced me to make some bad decisions during my second enlistment. I do have five year in the military and received a Master’s Degree in Human Resource Management from Webster University while on active duty. My infractions were never related to my job performance. I wanted to continue my career in the Navy; however, my command decided otherwise, I realize that I have made some mistakes. I dedicate myself and take pride in the military, my government, and my country. Due to these circumstances, I respectfully request for my discharge to be upgraded from General to Honorable.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214 (91MAR25 – 93MAR24)
Copy of Master of Arts Degree from Webster University
Copy of Transcript from Webster University
Copy of Bachelor of Science Degree from Excelsior College State of New York
Copies of Evaluation Report & Counseling Record (3 pages)
Copies of Enlisted Qualification History Documents (4 pages)
Copy of Navy Service Schools/Military Training Courses Document (2 pages)
Copy of Navy Occupation Training and Awards History Document (2 pages)
Letter from Applicant dated July 10, 2004
Employment Reference Letter dated July 10, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     910222 - 910324  COG
         Active: USNR              910325 - 930324  (RELAD) HON
 Inactive: USNR   930325 – 990221 (Reserve Oblig. Term Date – but cannot confirm the discharge date.)
 Inactive: USNR (DEP)     000321 - 000330  COG
Period of Service Under Review :
Date of Enlistment: 000331               Date of Discharge: 030512

 Length of Service (years, months, days):

         Active: 03 01 12
         Inactive: None

 Age at Entry: 30                          Years Contracted: 4

Education Level: 13                        AFQT: 42

 Highest Rate: PNSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.50 (4)    Behavior: 2.50 (4)                OTA: 2.87

 Military Decorations: None

 Unit/Campaign/Service Awards: JMUA, NAVY”E”, NDSM(2), SSDR

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL(UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).





 Chronological Listing of Significant Service Events :

011015:  Retention Warning: Advised of deficiency (Unlawful entry into residential address in military housing and communicating a threat as confirmed by Incident/Complaint Report 010914-69241-710-6n3. This incident caused a Letter of Warning to be issued from CO, NWS Charleston stating that further acts of misconduct will result in termination of quarters assignment), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
020308:  NJP for violation of UCMJ, Article 95: Did at Redbank Road main gate, NWS, Charleston, SC on or about 020202, resist being apprehended by MM2 B_ W_, an armed forces policeman, a person authorized to apprehend, violation of UCMJ, Article 134: Was at Redbank Road main gate, NWS, Charleston, SC on or about 020202, drunk and disorderly which conduct was of a nature to bring discredit upon the armed forces.
         Award: Forfeiture of full days pay for 7 days, extra duty for 14 days, reduction to E-2 (suspended for 6 months). No indication of appeal in the record.
020417:  NJP for violation of UCMJ, Article 86: (10 Specifications), Absence without leave, Specification 1: Did at PSD NWS Charleston, SC on or 1330, 020826, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Physical Therapy, Naval Hospital Charleston, SC; Specification 2: Did at PSD NWS Charleston, SC on or about 0700, 021009, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: NWS Branch Clinic, Charleston, SC; Specification 3: Did at PSD NWS Charleston, SC on or about, 1300, 021018, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Physical Therapy, Naval Hospital Charleston, SC; Specification 4: Did at PSD NWS Charleston, SC on or about, 1040, 021023, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Physical Therapy, Naval Hospital Charleston, SC; Specification 5: Did at PSD NWS Charleston, SC on or about, 1500, 021102, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Physical Therapy, Naval Hospital Charleston, SC; Specification 6: Did at PSD NWS Charleston, SC on or about, 1330, 021202, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Physical Therapy, Naval Hospital Charleston, SC; Specification 7: Did at PSD NWS Charleston, SC on or about, 1500, 030205, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Physical Therapy, Naval Hospital Charleston, SC; Specification 8: Did at PSD NWS Charleston, SC on or about, 1140, 030227, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: NWS Branch Clinic, Charleston, SC; Specification 9: Did at PSD NWS Charleston, SC on or about, 1500, 030228, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Physical Therapy, Naval Hospital, Charleston, SC; Specification 10: Did at PSD NWS Charleston, SC on or about, 1500, 030310, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Physical Therapy, Naval Hospital, Charleston, SC, violation of UCMJ Article 92: (10 Specifications) Dereliction in the performance of duties, Specification 1: Dereliction in the performance of duties on or about 1330, 020826, by negligently failing to show for his Physical Therapy; Specification 2: Dereliction in the performance of duties on or about 0700, 021009, by negligently failing to show for his Physical Therapy; Specification 3: Dereliction in the performance of duties on or about 1330, 021018, by negligently failing to show for his Physical Therapy; Specification 4: Dereliction in the performance of duties on or about 1040, 021023, by negligently failing to show for his Physical Therapy; Specification 5: Dereliction in the performance of duties on or about 1500, 021126, by negligently failing to show for his Physical Therapy; Specification 6: Dereliction in the performance of duties on or about 1500, 021230, by negligently failing to show for his Physical Therapy; Specification 7: Dereliction in the performance of duties on or about 1500, 030205, by negligently failing to show for his Physical Therapy; Specification 8: Dereliction in the performance of duties on or about 1400, 030227, by negligently failing to show for his Physical Therapy; Specification 9: Dereliction in the performance of duties on or about 1500, 030228, by negligently failing to show for his Physical Therapy; Specification 10: Dereliction in the performance of duties on or about 1500, 030310, by negligently failing to show for his Physical Therapy. Specification 5 under both charges dismissed.
Award: Forfeiture of $301.00 pay per month for 1 month, extra duty for 14 days, reduction to E-2. No indication of appeal in the record.
020422:  Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.
020422:  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

030505:  Commanding Officer authorized discharge general (under 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 20030512 with a general (under 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 honorable conditions (general) 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 award of nonjudicial punishment (NJP) on two occasions for 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 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. An upgrade to honorable is inappropriate. Relief denied.

 There is no law or regulation, which provides that an unfavorable discharge may be upgraded, based solely on the passage of time or good conduct in civilian life subsequent to leaving naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge.

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), re-issued October 2002, effective 22 Aug 2002 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - 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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