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NAVY | DRB | 2005_Navy | ND0500014
Original file (ND0500014.rtf) Auto-classification: Denied


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

ex-ITSN, USN
Docket No. ND05-00014

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 honorable. The Applicant requests a documentary record discharge review. The Applicant listed the American Legion as his representative.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050304. After a thorough review of the available 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 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “I am requesting an upgrade to an honorable discharge for educational benefits. I recently applied for my GI Bill benefits, and I was denied due to my current discharge status. I served four years in service, and was discharged from a command that was not my parent command. I feel that was a reason that I received the discharge that I did when I separated from the US Navy. I was stationed on the USS Chancellors Ville, and was at TPU Yokosuka when I was separated. Since my separation from the military in 2002, I have worked with the government as a contractor for two corporations. The first was a contract in Guantanamo Bay, Cuba where I worked as a Systems Administrator for Chenega Technology Services Corporation. The second was as a Systems Administrator in Jacksonville, FL on NAS Jacksonville working on the NMCI project. I primarily supported COMPATRECONWNG 11 and NADEP Jacksonville. I enjoyed my time in both places. I enrolled into college on the spring of 2004. I knew that I had gained an abundance of experience while in the military, but I felt that I needed to expand on that with a degree. I am going in pursuit of my AA in Business, then after that my BS in Information Technology. I plan on being a project manager after completing my BS studies. I have maintained great standing at the university, and plan on continuing that standing until the completion of my degree is complete. I joined the U.S. Navy in September of 1997 to serve my country, experience world travel, and grow more physically and spiritually. I enjoyed my experience in the military, and I am now looking toward the future with expectation of gaining more success with the knowledge I have gained from the service.”

 American Legion submitted no issues for consideration.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Letter from L_ D. W_, Academic Dean, dated September 17, 2004 (unsigned)
List of references

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     970811 - 970903  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 970904               Date of Discharge: 020401

 Length of Service (years, months, days):

         Active: 04 06 28
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4 (17 month extension)

 Education Level: 12                        AFQT: 63

 Highest Rate: IT2

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.40 (5)             Behavior: 3.20 (5)                OTA: 3.26

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR (3), AFEM, NER (2), NMCOSR

 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 1910-140 (formerly 3630600).

 Chronological Listing of Significant Service Events :

990318:  NJP for violation of UCMJ, Article 91: Disrespect toward a petty officer on 990303, violation of UCMJ, Article 117: Provoking speeches or gesture on 990303.
         Award: Restriction and extra duty for 14 days, reduction to E-2. Reduction suspended for 3 months. No indication of appeal in the record.
990318:  Retention Warning: Advised of deficiency (Disrespect toward a petty officer and provoking speech or gesture), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
990430:  NJP for violation of UCMJ, Article 80: Attempt on 990417, violation of UCMJ, Article 91: Contempt or disrespect toward warrant, noncommissioned, or petty officer on 990417, violation of UCMJ, Article 92: Failure to obey order or regulation on 990417, violation of UCMJ, Article 117: Provoking speeches on 990417.
         Award: Forfeiture of $537 per month for 2 months, restriction and extra duty for 30 days, reduction to E-2. No indication of appeal in the record.
991015:  Placement on mandatory PT program/counseling (First Cycle Failure):
         Applicant formally evaluated as not meeting the Navy’s minimum physical fitness requirements and advised that to remain eligible for continued service he must participate in the mandatory PT program regimen and that failure to cooperate in and complete the regimen may constitute grounds for separation processing.

000121:  NJP for violation of UCMJ, Article 86: Absence from unit, organization, or place of duty on 991229, violation of UCMJ, Article 92: Dereliction in the performance of duties on 991229.
         Award: Forfeiture of $41 for 1 month, restriction and extra duty for 3 days. No indication of appeal in the record.
010721:  Applicant arrested by Japanese Authorities and for violation of the following Criminal Codes: Article 130 – Unlawful entry, Article 261 – Destruction of Personal Property and Article 24-2 – Violation of Cannabis Control Law.

010721:  Applicant assigned to COMFLTACT Transient/Others, Yokosuka, Japan.
010906:  NJP for violation of UCMJ, Article 112A: Wrongful possession of tetrahydrocannabinol (THC) on 010721.
         Award: Forfeiture of $691.80 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. Vacate frocking. Appealed: 010907. Appeal denied 011016.
020201:  Applicant notified of intended administrative separation processing by reason of misconduct due to a pattern of misconduct and misconduct due to drug abuse. The least favorable characterization of service possible is under other than honorable.
020201:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
020205:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the evidence does not support misconduct drug-abuse and found that the evidence supports misconduct-pattern of misconduct. By unanimous vote, the Board recommended retention for reason of misconduct-drug abuse and separation for reason of misconduct-pattern of misconduct. By unanimous vote, the Board recommended separation for misconduct-pattern of misconduct with a characterization of general.

020228:  Commanding Officer, Fleet Activities, Yokosuka, recommended discharge general (under honorable conditions) by reason of misconduct due to drug abuse and misconduct due to a pattern of misconduct.

*Complete discharge package not contained in service record

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020401 with a general (under honorable conditions) characterization by reason of misconduct due to a pattern of misconduct (A). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

Issue 1. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. The Applicant contends that he received a general (under honorable conditions) discharge because he was not discharged by his “parent command.” The Applicant was transferred to COMFLTACT, Yokosuka, Japan on 20010721. The record contains no evidence of any wrongdoing by the Applicant’s Commanding Officer or anyone else at Fleet Activities, Yokosuka. The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. As such, this Board presumed that Applicant’s discharge was regular in all respects. Relief denied.

A general 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 four nonjudicial punishment proceedings for violations of Articles 86, 91, 92, 112a and 117 of the UCMJ. The Applicant was also arrested by Japanese Authorities for unlawful entry and destruction of personal property, events that were not adjudicated by the Navy. 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Relief is not warranted.

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 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, 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 sufficient documentation for the Board to consider. 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 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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

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

 D. 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.

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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