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NAVY | DRB | 2004_Navy | ND04-01327
Original file (ND04-01327.rtf) Auto-classification: Denied


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

ex-HTFN, USN
Docket No. ND04-01327

Applicant’s Request
The application for discharge review was received on 20040824. 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 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 20041222. 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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

No issues were submitted by the Applicant.

 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)     930902 - 930920  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 930921               Date of Discharge: 970228

 Length of Service (years, months, days):

         Active: 02 11 15
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 47

 Highest Rate: HT3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.90 (2)    Behavior: 3.80 (2)                OTA: 3.90

 Military Decorations: None

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

 Days of Unauthorized Absence: 147

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

941007:  NJP for violation of UCMJ, Article 134: Disorderly conduct.
         Award: Forfeiture of $466.00 pay per month for 1 month, restriction and extra duty for 20 days. No indication of appeal in the record.

941007:  Retention Warning: Advised of deficiency (Disorderly conduct), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

960926:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 960926 having been an unauthorized absentee since 0700, 960819 from USS NIMITZ (CVN-68).

970113:  Report of Return of Deserter. Applicant surrendered on 970112 (2234) at USS NIMITZ (CVN-68). Returned to military control.

970124:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86.
         Specification: Unauthorized absence from 960819 until 970112 (147 days).
         Finding: to Charge I and the specification thereunder, guilty.
         Sentence: Forfeiture of $767.32 pay per month for 1 month, reduced to E-3, confinement for 30 days.
         CA action 970127: Approved findings and sentence.

970131:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of commission of a serious offense as evidenced by his violation of the UCMJ, Article 86, unauthorized absence from 960819 until 970112 and by reason of misconduct due to a pattern of misconduct as evidenced by his two or more punishments under the UCMJ in violation of an administrative counseling/warning page 13 with his current enlistment.
970131:  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

970131:  Commanding Officer recommended discharge under other than honorable conditions by reason of commission of a serious offense as evidenced by his violation of the UCMJ, Article 86, unauthorized absence from 960819 until 970112 and by reason of misconduct due to a pattern of misconduct as evidenced by his two or more punishments under the UCMJ in violation of an administrative counseling/warning page 13 with his current enlistment.
970217:  Released from confinement and returned to full duty.
970219:  COMCARGRU SEVEN authorized 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 19970228 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).

The Applicant did not provide any decisional issues for the Board to consider. 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 award of nonjudicial punishment on one occasion for violating the UCMJ, Article134 and summary court-martial for violating the UCMJ, Article 86 thus substantiating the misconduct. 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 a general (under honorable conditions). The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. 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. 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 14, effective 03 Oct 96 until 11 Dec 97), 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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