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NAVY | DRB | 2004_Navy | ND04-00711
Original file (ND04-00711.rtf) Auto-classification: Denied


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

ex-ICFA, USN
Docket No. ND04-00711

Applicant’s Request
The application for discharge review was received on 20040324. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance discharge review before a traveling panel. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in Washington DC area. Subsequently, the Applicant elected a personal appearance hearing the Washington DC area and obtained representation from Disabled American Veterans.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20051107. 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 by reason of misconduct due to a pattern of misconduct .



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I submit I was top in my class in a school. Prior to enlistment I had a warrant I thought was cleared. I was stripped of my rank. I believe I was unable to do what I was promised. I apologize for my absences or AWOL periods. While in the service my family began to experience a lot of turmoil. My mom lost her house due to house fire. I received so many messages from the Red Cross. I plea for forgiveness because as a 20 year-old I made bad/immature decisions. Please review my case. I was really worried about my mom and unsettled at time of active duty.”

The Applicant did not submit any additional issues at the time of his hearing.

The Applicant’s representative, Disabled American Veterans, did not participate in the personal appearance hearing and did not submit any issues on the Applicant’s behalf.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214
Two pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     870709 - 880705  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 880706               Date of Discharge: 910904

 Length of Service (years, months, days):

         Active: 03 01 29                  [Does not exclude lost time]
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 31
         Confinement:              none

Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 60

 Highest Rate: IC3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.87 (6)             Behavior: 2.87 (6)                OTA: 3.17

 Military Decorations: None

 Unit/Campaign/Service Awards: Navy ‘E’ Award, Sea Service Ribbon, Armed Forces Expeditionary Medal, National Defense Service Medal



 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 :

890119:  Due to preservice involvement with civil authorities and drug abuse, Applicant’s security clearance revoked.

900812:  Medical evaluation found the Applicant to be psychologically alcohol dependent. Recommendation: CAAC Level III or VA program if separated.
910214:  NJP for violations of UCMJ:
Article 86 (5 specs): (1-4) Absent from appointed place of duty, (5) Unauthorized absence from 0700-1000, 910204.
 Article 107: False official statements.
Article 92: Failure to obey order or regulation, to wit: OPNAVINST 5350.4B PARA (6) by wrongfully driving a motor vehicle with a blood/alcohol content of .16.
         Award: Forfeiture of $509 month for 2 months, restriction and extra duty for 45 days, reduction to E-3. Forfeiture and reduction suspended for 6 months. No indication of appeal in the record.
910301:  Drug and Alcohol Abuse Report: Alcohol incident, ashore, off duty. Method of identification: civilian police 910214. DAPA and Commanding Officer recommended separation via VA hospital.

910406:  Applicant to unauthorized absence 2000, 910406.

910407:  Applicant from unauthorized absence 0700, 910407.

910410:  Applicant to unauthorized absence 0700, 910410.

 910416   Applicant from unauthorized absence 1240, 910416.

 910417:  Written Technical Arrest Orders issued and delivered to report NLT 2400, 910418.
910509:  Vacate suspended forfeiture and reduction awarded at CO’s NJP dated 910214 due to continued misconduct.

910509:  NJP for violations of UCMJ:
 Article 86: Absence without leave from 910406 to 910410.
Article 107: False official statements.
Article 92: Failure to obey order or regulation.
         Award: Restriction and extra duty for 30 days. No indication of appeal in the record.
910509:  Retention Warning [Counseling] from USS WICHITA (AOR 1): Advised of deficiency (Absence without leave (2 specs), missing movement), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910609:  Applicant to unauthorized absence 0730, 910609.

910612:  Applicant missed ship’s movement.

910619:  Applicant missed ship’s movement.
910626   Applicant from unauthorized absence 1315, 910626.
910703:  Applicant to unauthorized absence 0700, 910703.

910709:  Applicant missed ship’s movement.

910711:  Applicant from unauthorized absence 2325, 910711.

 910715:  NJP for violations of UCMJ:
 Article 86 (2 specs): Unauthorized absence from 910703 to 910711, Unauthorized absence from 910609 to 910626, violation of UCMJ.
Article 87 (3 specs): Missing movement on 910709, Missing movement 910619, Missing movement on 910612.
Article 107: False official statements.
         Award: Forfeiture of $422 per month for 2 months, bread and water for 3 days, reduction to E-2. No indication of appeal in the record. [Details of NJP extracted from CO’s message dated 910816.]
910720:  Applicant on unauthorized absence 0700-1030, 910720.

 910813:  USS WICHITA (AOR 1) notified Applicant of intended recommendation for administrative discharge by reason of misconduct due to a pattern of misconduct as evidenced CO’s NJP of 910214, 910509 and 910715 and misconduct due to commission of a serious offense as evidenced by CO’s NJP of 910215. If separation is approved, the characterization may be under other than honorable conditions
910813:  Applicant advised of rights and having consulted 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. Applicant did not object to the separation.
910816:  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.

910827:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

910904:  Applicant declined 30-day inpatient treatment at VA hospital prior to separation.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19910904 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization under other than honorable conditions. 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).

The Applicant contends that he was “at the top of [his] class in A school.” Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. 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 (NJP) for violations of Articles 86, 87, 92 and 107 of the UCMJ. The Applicant was also apprehended by civil authorities for driving a motor vehicle with a blood alcohol content of .16, a violation of Article 111 of the UCMJ. The Applicant’s violations of Articles 87, 92, 102 and 111 are serious offenses. 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 is not warranted.

The Applicant implies that his discharge was inequitable because he was “unable to do what [he] was promised” due to being disenrolled from his initial training at “A-school.” The record shows the Applicant’s security clearance was revoked due to the Applicant’s preservice involvement with civil authorities and drug abuse. The Applicant testified that the revocation of his security clearance caused the Applicant to be disenrolled from radioman school. The Board did not find the Applicant’s security clearance revocation or subsequent disenrollment from A-school improper or inequitable. Furthermore, the Board could find no connection between the Applicant’s security clearance revocation on 19890119; his subsequent disenrollment for radioman school; and the Applicant’s separation for misconduct due to a pattern of misconduct on 19910904. Relief denied.

The Applicant contends that his family was experiencing a lot of turmoil during his enlistment and that his mother’s house was lost to fire. The Applicant implies that the resulting worry and unsettlement, coupled with his youth, should mitigate his misconduct. While the Applicant may feel that his personal problems and immaturity were the underlying causes of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The following is provided for the edification of the Applicant. The Applicant has exhausted his opportunities for review by the NDRB. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.


Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A, Change 8 effective 21 Aug 89 until 14 Aug 91), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A PATTERN OF MISCONDUCT.

B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 87, missing movement, Article 92, failure to obey an order/regulation, Article 107, false official statements or Article 111, drunken driving, if adjudged at a Special or General Court-Martial.

 C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

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 “ http://Boards.law.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:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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