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NAVY | DRB | 2005_Navy | ND0500003
Original file (ND0500003.rtf) Auto-classification: Denied


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


ex-MMFR, USN
Docket No. ND05-00003

Applicant’s Request
The application for discharge review was received on 20040930. 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/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:

 “My discharge was inequitable because it was based on one stupid incident that I admit to an claim full responability for. Even though after 24 months of service with no other adverse action. I learned my lesson and wish to start my life over the right way.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None were submitted

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     980227 - 980316  COG
          Active: USN                        980317 – 010216  HON*
*Extracted from CO’s Letter of Recommendation for Administrative Separation
 Period of Service Under Review :
Date of Enlistment: 010217               Date of Discharge: 030617

 Length of Service (years, months, days):

          Active: 02 04 00
          Inactive: None

 Age at Entry: 25                          Years Contracted: 6
Education Level: 12                        AFQT: 39

 Highest Rate: MM3
Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (2)    Behavior: 2.50 (2)                OTA: 2.87
Military Decorations: None

 Unit/Campaign/Service Awards: MUC, NAVY “E” RIBBON (2), NDSM, AFEM, AFSM, SSDR (2)
Days of Unauthorized Absence: 40

 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 :

010217:  Applicant reenlisted this date for 6 years.
020808:  NJP for violation of UCMJ, Article 86 (1 Spec)
          Spec 1: In that you [Applicant], on active duty, did, at or about 0700, 24 July 2002, without authority, absent yourself from your unit, to wit: USS DWIGHT EISENHOWER (CVN 69), located at Newport News Virginia , and did remain absent until at or about 0700, 25 July 2002. (1 day)
         Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 3 days. Not appealed.

020923:  Applicant involvement with civil authorities. General District Court, Traffic Division, Norfolk, Virginia held on 020923 for suspended license (2 nd offense), expired tags, and failure to appear. Awarded 30 days confinement suspended minus 2, $100.00 fine suspended, and plus court costs. [Extracted from CO’s Letter of Recommendation for Other Than Honorable Administrative Separation].

021118:  NJP for violation of UCMJ, Article 92 (2 Specs): In that you [Applicant], on active duty, having knowledge of a lawful order issued by the Commanding Officer, USS DWIGHT D. EISENHOWER, that you are to use the safe ride card for emergencies only, an order which it was your duty to obey, did on board USS DWIGHT D. EISENHOWER, located in Newport News, Virginia, on or about 23 and 27 September 2002, fail to obey the same by using the safe ride card to get to work.
         Violation of UCMJ, Article 123, Forgery (1 Spec).
         Award: Reduction in Rank to E-3, forfeiture of $90.00 pay per month for 2 month, restriction and extra duty for 14 ½ days. Not appealed.

030425:  Special Court Martial
         Charge I: violation of the UCMJ, Article 86 (2 Specs):
         Spec 1: Unauthorized absence from on or about 021211 until apprehended on or 021221.
         Spec 2: Unauthorized absence from on or about 021221 until apprehended on or about 030120.
         Charge II: violation of UCMJ, Article 92 (3 specs):
         Spec1: Failure to obey a lawful order.
         Spec 2: Dereliction of duty.
         Spec 3: Failure to obey other lawful order.
         Charge III: violation of UCMJ, Article 123 (1 Spec):
         Spec 1: Forgery
         Charge IV: violation of UCMJ, Article 134 (1 Spec):
         Spec 1: Failure to pay just debts.
         Findings: to Charge I and specifications 1 and 2 thereunder, guilty.
         To Charge II and specifications 1, 2, and 3 thereunder, guilty.
         To Charge III and the specification thereunder, guilty.
         To Charge IV and the specification thereunder, guilty.
         Sentence: To be confined 49 days; to serve 30 days’ hard labor without confinement; to be reduced to the pay grade of E-1 and to serve 30 days’ restriction concurrently with 30 days’ hard labor without confinement.
         CA 030425: Sentence approved and ordered executed.

 030604:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct – pattern of misconduct and misconduct - commission of a serious offense.
030604:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
030610:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct - pattern of misconduct and misconduct - commission of a serious offense. Commanding Officer’s comments (verbatim): “MMFN B_’s repeated misconduct shows that he is incompatible with the Naval service. He has shown a total disregard for Naval policies and regulations, as evidenced by his two Captain’s Masts and one Special Court-Martial. I have determined that he has no potential for further Naval service. Therefore, I recommend that he be separated with an Other Than Honorable discharge.”
030612:  COMNAVAIRLANT NORFOLK VA directed 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 20030617 under other than honorable conditions for misconduct due to commission of a serious offense (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).
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. 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 during this period of enlistment was marred by 2 nonjudicial punishment proceedings for violations of Articles 86, 92, and 123 of the UCMJ. Also, the Applicant pled guilty at a special court-martial to violations of Articles 86 (2 Specs, UA for a total of 40 days), 92 (3 Specs), 123, and 134. 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 following is provided for the edification of the Applicant. 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. 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, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any 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), 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. In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 86, for unauthorized absence for a period in excess of 30 days 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 II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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