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NAVY | DRB | 2004_Navy | ND04-00878
Original file (ND04-00878.rtf) Auto-classification: Denied


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

ex-MSSR, USN
Docket No. ND04-00878

Applicant’s Request
The application for discharge review was received on 20040507. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050107. 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, 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. “I was a good sailor and had some marital problems that caused me to act out. Please reconsider and upgrade my discharge.”
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)     000824 - 000910  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 000911               Date of Discharge: 030725

 Length of Service (years, months, days):

         Active: 02 02 15
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 35

 Highest Rate: MSSA
Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.00 (2)             Behavior: 1.00 (2)                OTA: 1. 83

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR

 Days of Unauthorized Absence: 218

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

020307:  Summary Court-Martial.
         Charge I: Violation of the UCMJ, Article 86, (6 Specifications);
          Specification 1: Absent from unit on or about 020128 until 020202 (5days), Specification 2: Absent from 020118 until 020125 (7days); Specification 3: Absent from 010918 until 020103 (107days); Specification 4: Absent from 010606 until 010807 (62days); Specification 5: Absent from 010409 until 010507 (28days); Specification 6: Fail to go to appointed place of duty between 010808 and 010821 (restricted musters). Charge II: violation of the UCMJ, Article 87: (3 Specifications), Missing ship’s movement through neglect on or about 010625, 010716 and 010921.
          Finding: Charge I and specifications 1 through 6 thereunder, guilty. To Charge II and specifications 1 through 3 thereunder, guilty.
         Sentence: Forfeiture of $638.00 pay per month for 1 month, reduced to E-1, confinement for 30 days.
         CA action 020328: Sentence approved and ordered executed.
020327:  Released from confinement and returned to full duty status.
020404:  Retention Warning: Advised of deficiency (You were convicted at a Summary Court-Martial for violation of Article 86, 5 specifications of unauthorized absence from your organization and 1 specification of failure to go to your appointed place of duty; and Article 87, UCMJ, 3 specifications of missing ship’s movement through neglect), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
020419:  NJP for violation of UCMJ, Article 86: Absence from unit on or about 020409 until 020418 (9days).
         Award: Forfeiture of $200.00 pay per month for 1 month, restriction and extra duty for 20 days. No indication of appeal in the record.
020716:  Unauthorized absence from 0700-0830, 020715 (1 hour/30 minutes).

 020813:  Unauthorized absence from 0900, 020812, until surrendering onboard USS NIMITZ (CVN-68) at 0700, 020813 (22 hours).
030409:  NJP for violation of UCMJ, Article 86: Absence from unit at or about 2359, 030314 until at or about 0700, 030315; violation of UCMJ, Article 134: Incapacitated for the performance of duty at or about 0600, 030226.
         Award: Forfeiture of $400.00 pay per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days (suspended for 6 months), reduction to E-1 (suspended for 6 months). No indication of appeal in the record.

030617:  Summary Court-Martial.
         Charge I: Violation of the UCMJ, Article 86,
         Specification: Fail to go to appointed place of duty. Charge II: violation of the UCMJ, Article 92: (2 Specifications), Failure to obey a lawful general regulation. Charge III: Violation of the UCMJ, Article 128, Specification, Assault. Charge IV: Violation of the UCMJ, Article 134: (2 Specifications), Drunkenness.
         Finding: Charges I and the specification thereunder, guilty. To Charge II and specifications 1 and 2 thereunder, guilty. To Charge III and the specification thereunder, guilty. To Charge IV and specifications 1 and 2 thereunder, guilty.
         Sentence: Forfeiture of $600.00 pay per month for 1 month, reduced to E-1, confinement for 30 days.
         CA action 030625: Sentence approved and ordered executed.

030618:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct and misconduct due to the commission of a serious offense.
.
030618:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ, Article 27(b), elected to waive all rights.
030625:  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.

030702:  Commander, Cruiser-Destroyer Group FIVE authorized the Applicant's discharge under other than 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 20030725 under other than honorable conditions for misconduct due to commission of a serious offense (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: Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident during the Applicant’s enlistment. Relief not warranted.

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. The Applicant’s service was marred by the award of a summary court-martial on two occasions for violations of Articles 86 (Unauthorized absence), 87 (Missing ships movement), 92 (Failure to obey an order), and 128 (Assault) of the UCMJ. In addition, the Applicant’s record was marred by award of nonjudicial punishment (NJP) on two occasions, for violations of Articles 86 (Unauthorized absence), and 134 (Incapacitated for the performance of duty) of the UCMJ. Articles 87, 92, and 128 are all considered to be serious offenses under 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 upgrade to 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), 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. Secretary of the Navy Instruction 5420.174D of 22 December 2004 Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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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