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NAVY | DRB | 2005_Navy | ND0500096
Original file (ND0500096.rtf) Auto-classification: Denied


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


WALLACE, Jeffrey D., 256-63-9139, ex-SR, USN
Docket No. ND05-00096

Applicant’s Request
The application for discharge review was received on 20041020. The Applicant requested the characterization of service received at the time of discharge be general/under honorable conditions. The Applicant requested a documentary record review. The Applicant did not list a representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050118. 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 1910-140 (formerly 3630600).





PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Applicant’s issues, as stated on the application:

 1. “The discharge that I have received is improper because of the circumstances between my LCPO and I. We had personal conflicts which resulted in myself going to Captains Mast for reasons that would normally be handled within the Division. I do admit to being (UA) on the first occasion, but the other occasions I disagree with. While I was on my six month deployment, my LCPO was only there for the first month. He was sent home by the CO because of a broken hand. During the deployment I never once got into any trouble. I was a squared away sailor. I even made lead Seaman while on deployment. I received great remarks by my Division Officer, Ensign B_. All I wanted to be was a good sailor. My dream was to one day go into the officers program. All the good remarks in my behalf was not included in the service record. Why ? It seems that everything about me in the service record is bad. BMCM P_ has a lot of power on the ship that I served on. I would just like to get an opportunity to get on with my life on a positive note. There are a lot of things that I would like to do, such as get a good job, finish college. I really want to be a school teacher, but without my GI Bill I can’t afford to go to school. All I ask of you is a fair discharge. Thank you! ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
         None submitted

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     990914 - 990926  COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 990927               Date of Discharge: 010507

 Length of Service (years, months, days):
         Active: 01 06 20
          Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 58

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

 Performance: 0.00 (*)             Behavior: 0.00 (*)                OTA: 0.00
Military Decorations: None

 Unit/Campaign/Service Awards: AFEM
Days of Unauthorized Absence: 40

 *No marks found in Applicant’s service record.
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).
Chronological Listing of Significant Service Events :

990914:  Enlistment statement of understanding. Applicant briefed that drug usage in the Navy is prohibited and will not be tolerated.

000217:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful order.
         Award: Forfeiture of $150.00 pay per month for one month, restriction for 7 days. No indication of appeal in the record.
001210:  Applicant to UA as of 1230, 001210.
001211:  Applicant from UA at 0830, 001211.
001212:  Applicant to UA as of 1812, 001212.
001213:  Applicant from UA at 1102, 001213.

 001213:  Applicant UA as of 1840, 001213.
001215:  Applicant declared a deserter on 001213.
001219:  Applicant from UA at 0938, 001219.

 001220:  NJP for violation of UCMJ, Articles 86 (UA), 85 (Desertion), 90 (Willfully disobeying a superior commissioned officer), and 95 (Resistance):
Award: Forfeiture of $584.00 per month for 2 months (1 month suspended for 6 months), reduction in rate (suspended for 6 months) restriction and extra duty for 45 days. No indication of appeal in the record.
001220:  Retention Warning: Advised of deficiency [Violation of Article 85 (Desertion), 86 (Unauthorized Absence), 90 (Willfully Disobeying Superior Commissioned Officer), 95 (Resistance, Breach of Arrest and Escape)] notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010108:  NJP for violation of UCMJ, Article 134: Wrongful altering of a military identification card.
Award: Confinement on bread and water/diminished rations for 3 days. No indication of appeal in the record.
010108:  Punishment of reduction to E1, forfeiture of $584.00 pay per month for 2 months (1 month suspended for 6 months) vacated due to continued misconduct.
010207:  Applicant to UA at 0700, 010207.

 010208:  Applicant from UA at 0900, 010208.


010214:  NJP for violation of UCMJ, Article 86 (3 specs): Absence without leave.
          Award: Forfeiture of $521.00 pay per month for 1 month, restriction and extra duty for 30 days. No indication of appeal in the record
                                                                                                   
010227:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by NJPs on 11 Feb 00 for Violation UCMJ Article 92 (Willful failure to obey order or regulation), 20 Dec 00 for Violation UCMJ Article 86 (Unauthorized Absence), UCMJ Article 85 (Desertion), UCMJ Article 90 (Willfully disobeying superior commissioned officer) and for Violation 95 (Resistance, breach of arrest and escape) and 14 Feb 01 for Violation of UCMJ Article 86 (Unauthorized Absence) and misconduct commission of a serious offense as evidenced by your NJPs on 11 Feb 00 for Violation UCMJ Article 92 (Willful failure to obey order or regulation) and 20 Dec 00 for Violation UCMJ Article 85 (Desertion), UCMJ Article 90 (Willfully disobeying superior commissioned officer) and for Violation UCMJ Article 95 (Resistance, breach of arrest and escape).
010319:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
010321:  Applicant UA as of 0630, 010321.

 010406:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. Commanding Officer’s comments (verbatim): “Seaman Recruit W_ can not conform to Navy Standards. He was disenrolled from OS “A” School due to disciplinary actions. Earlier attempts on BARRY to place him in the “Second Chance” Program failed; no command was willing to take the servicemember with previous offenses and actions. BARRY has sent him to the “Bearings” Course in an attempt to have him focus his life goals and take responsibility for his actions. His actions are impacting his division, and taking an exorbitant amount of time for his chain of command. He must be Administratively Separated as soon as possible.”

010417:  Applicant from UA at 1645, 010417.

010424:  Applicant UA as of 0700, 010424.

010425:  Applicant from UA at 0800, 010425.

010426:  Applicant UA as of 0700, 010426.

010429:  Applicant from UA at 1800, 010429.
 010430:  NJP for violation of UCMJ, Articles 86 and 121.
 Violation of UCMJ Article 86: Absence without leave.
Violation of UCMJ Article 121: Larceny of government property.
          Award: Forfeiture of $521.00 pay per month for 2 months, restriction and extra duty for 30 days. No indication of appeal in the record
010503:  Commander, Cruiser Destroyer Group TWO directed 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 20010507 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).
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 of the circumstances between my LCPO and I”. The record contains no evidence of any wrongdoing by anyone involved in the discharge processing. 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.

The Applicant contends, “he was a squared away sailor”. 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 was marred by 4 nonjudicial punishment proceedings for violations of Articles 86 (UA for a total of 40 days), 85, 90, 92, 95, and 134 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.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits. This issue does not serve to provide a foundation upon which the Board can grant relief.

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, 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), Change 18, effective12 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 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 APPLICANTIf 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


 BOARD MEMBERS RECORD OF VOTE
 ____________________________________________________________________ NAME                                           CHARACTER        BASIS/REASON

W.E. BRIGGS, LTCOL, USMC                  NO CHANGE                 NO CHANGE
 Presiding Officer
 
 K. KALCIC, LCDR, USN                       NO CHANGE                 NO CHANGE
Member

M. CUNNINGHAM, LT, USNR           NO CHANGE                 NO CHANGE
Member
 
J. KOSKY, LT, JAGC, USNR,                 NO CHANGE                 NO CHANGE
Member
  
A. E. KOLKMEYER, LTCOL, USMC     NO CHANGE                 NO CHANGE
 Recorder


Recorder’s Signature: _______________________________________


Presiding Officer’s Signature: _________________________________

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective12 Dec 1997 until 21 Aug 2002, Separation by Reason of Misconduct - Pattern of Misconduct, states:     _______________________________________________________ Responsible        BUPERS (Pers-83) Phone: DSN 224-8245 Office        COM (703) 614-8245      FAX 224-8194    _______________________________________________________ Policy     Members may be separated when during the current enlistment they have:two or more nonjudicial punishments, court-martial, or civil convictions (or combination thereof);three or more unauthorized absences, each is more than 3 days, but less than 30 days duration;a set pattern of failure to pay just debts; ora set pattern of failure to contribute adequate support to dependents or failure to comply with civil court orders, decrees, or judgments concerning dependent support; andviolated a NAVPERS 1070/613, Administrative Remarks counseling/warning (MILPERSMAN 1910-204) specifically addressing the non-support.A member must have violated a NAVPERS 1070/613 warning prior to processing. A counseling and warning is legally binding on the Navy. The typical correct sequence is NJP - NAVPERS 1070/613 - NJP. There is no requirement for a commanding officer to award a NAVPERS 1070/613 following NJP. That decision should be based on the circumstances of the situation. A common error occurs when commands issue a NAVPERS 1070/613 warning following the second NJP. In these instances, the member is essentially being given another opportunity by the commanding officer to correct the deficiency and processing for pattern of misconduct in inappropriate. Another common error is initiating processing for pattern of misconduct without a NAVPERS 1070/613 warning.All offenses processed or considered under Pattern of Misconduct must have occurred in the current enlistment.    _______________________________________________________ Procedures         Use this table to determine processing procedures.       WHEN...THEN use... one of the offenses requires mandatory processing or the commanding officer believes the circumstances surrounding the offense warrant OTH per MILPERSMAN 1910-300Administrative Board Procedures (MILPERSMAN 1910-404)the commanding officer believes that the circumstances surrounding the offense do not warrant an OTHNotification Procedures (MILPERSMAN 1910-402)       _______________________________________________________ Characterization   Further guidance on characterization of service is provided in of Separation      MILPERSMAN 1910-300. This table provides general information based on type of procedures used. IF...THEN the least favorablecharacterization... the Notification Procedure is usedis GEN per MILPERSMAN 1910-300the Administrative Board Procedure is usedis OTH per MILPERSMAN 1910-300   If the member has less than 180 days of service an Entry Level Separation may be appropriate. See MILPERSMAN 1910-308 for further guidance.      _______________________________________________________

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