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NAVY | DRB | 2004_Navy | ND04-01090
Original file (ND04-01090.rtf) Auto-classification: Denied


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

ex-YNSA, USN
Docket No. ND04-01090

Applicant’s Request
The application for discharge review was received on 19940409. The Applicant requests the characterization of service received at the time of discharge changed to honorable. The Applicant requests a personal appearance hearing discharge review before the Board in the Washington National Capital Region. 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) first conducts a documentary review prior to any personal appearance hearing.


Decision

A documentary discharge review was conducted in Washington, D.C. on 20050511. 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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “ I think my discharge is improper because I was discharged from the United States Navy on an incident which I had five witnesses that saw what happened that day. It was a two party mistake at that time and we both overreacted. Unfortunately, my reaction disrespecting a petty officer but at that time he came off wrong to me and there is a right and wrong way to approach someone especially when my superior petty officer at that time told me to continue standing watch.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2)
Grade Report from Florence-Darlington Technical College (5 pages)


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     900712 - 901202  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 901203               Date of Discharge: 940409

 Length of Service (years, months, days):

         Active: 03 04 07
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 50

 Highest Rate: YNSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.90 (2)             Behavior: 3.00 (2)                OTA: 3.10

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 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 3630600.

 Chronological Listing of Significant Service Events :

901203:  Applicant reported for initial tour of active duty for training.

930122:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
         Award: Restriction for 30 days, reduction in rate (suspended for 6 months). No indication of appeal in the record.



930514:  Applicant detached from Carrier Airborne Early Warning Squadron One Hundred Twenty.

930527:  Commanding Officer Carrier Airborne Early Warning Squadron One Hundred Twenty, letter in response to Applicants statement regarding Enlisted Performance Evaluation, states “substandard performance and lack of reliability…”.

930613:  Applicant reported for duty aboard USS La Moure County (LST-1194).

930616:  Retention Warning from USS LA MOURE COUNTY (LST-1194): Advised of deficiency (Violation of the UCMJ Article 86 (UA) as evidenced by your CO’s NJP held 930122), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930825:  Enlisted Performance Counseling: Reliability.

930830:  Enlisted Performance Counseling: Reliability, military bearing.

930916:  Enlisted Performance Counseling: Reliability.

930920:  Enlisted Performance Counseling: Reliability.

 930923:  Enlisted Performance Counseling: Reliability, personal behavior, military bearing.

931003:  Enlisted Performance Counseling: Reliability, military bearing.
931028:  NJP for violation of UCMJ, Article 86: (2 Specs), UA (3 hours).
         Award: Forfeiture of $456.00 pay per month for 2 months, restriction and extra duty for 30 days, reduction in rate (suspended for 3 months). No indication of appeal in the record.

940218:  NJP for violation of UCMJ, Article 91: Insubordinate conduct toward petty officer.
         Award: Forfeiture of $466.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. Appealed 940307. Appealed denied 940314.


940223:  USS LA MOURE COUNTY (LST-1194) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by three Commanding Officer’s non-judicial punishments and misconduct due to commission of a serious offense as evidenced by article 91, insubordinate conduct toward a petty officer.

940307:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

940314:  Commanding Officer Amphibious Squadron Ten, denial of NJP Appeal.
940406:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct however not misconduct due to commission of a serious offense, that the misconduct warranted separation, and recommended discharge general (under honorable conditions).

940409:  Applicant letter to Commanding Officer stating no longer objects to separation classified as general.

940409:          DD Form 214: Applicant discharged

940415:  Commanding Officer informed Chief of Naval Personnel of Applicants discharge classified as general under honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by three Commanding Officer’s non-judicial punishments and misconduct due to commission of a serious offense as evidenced by article 91, insubordinate conduct toward a petty officer. CO’s comments, “YNSA Pierce has demonstrated that he is unable and unwilling to adapt or conform to the standard rules and regulations…YNSA Pierce displays little regard for orders, authority, or the general welfare of his shipmates…demonstrated poor attitude, required constant supervision, poor personal integrity, and failure to correct his deficiencies”.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940409 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: 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 (under 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 a retention warning and three nonjudicial punishment proceedings for violations of Articles 86 (unauthorized absence) and 91 (insubordinate conduct) 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 is not warranted.

In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. Specifically, Applicant alleged that his discharge was improper because it was based an incident which he believes was a two party mistake resulting in his general discharge. For the Applicant’s information, the decision to administratively separate a service member is made independently of the imposition of NJP per regulation. The record, however, contains no evidence of any wrongdoing by the Applicant’s Commanding Officer or anyone else for that matter in the discharge process. The Commanding Officer clearly states in his letter to the Chief of Naval Personnel regarding the discharge of the Applicant that the discharge was based upon a pattern represented by three NJP’s. The administrative board, by a 3-0 vote also recommended separation do to a pattern of misconduct represented by three NJP’s and recommended general discharge. The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. No evidence was presented that rebutted the presumption of regularity; therefore, this Board presumed that Applicant’s discharge was regular in all respects. Relief denied.

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. The NDRB is authorized 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. As of this time, the Applicant has not provided sufficient documentation for the Board to consider.

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 documentation to support any claims of post-service accomplishments or any other evidence related 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, Change 5, effective 05 Mar 93 until 21 Jul 94), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A PATTERN OF MISCONDUCT.

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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