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NAVY | DRB | 2005_Navy | ND0500283
Original file (ND0500283.rtf) Auto-classification: Denied


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

ex-MSSR, USN
Docket No. ND05-00283

Applicant’s Request
The application for discharge review was received on 20041210. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050428. 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 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “I had gone UA Because of problems with my Ex wife and had problems sleeping and missed my musters often. And I would like to join the police here in Phoenix. I did something wrong and I’m sorry for that but I think I have been punished long enough Please change my Discharge”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter of reference from J_ B_, Bullseye Wireless Store Manager, undated
Applicant’s letter to the Board, undated

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     940720 - 950712  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 950713               Date of Discharge: 970122

 Length of Service (years, months, days):

         Active: 01 06 09 (Doesn’t exclude lost time)
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 41

 Highest Rate: MSSA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.00 (2)             Behavior: 2.00 (2)                OTA: 2.59
Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, AFEM

 Days of Unauthorized Absence: 28

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.

 Chronological Listing of Significant Service Events :

960203:  Admitted to Naval Hospital, Bremerton , WA, Psychiatric ward for suicidal ideation which he attributed to difficulty coping with work related stressors.
 Admission Diagnoses: (1) Adjustment disorder, unspecified, acute, non-disabling; (2) Passive / aggressive traits; (3) Tension headaches and constipation (per patient report).
          Disposition: The patient’s motivation to improve his condition is questionable. He typically has dealt with his dissatisfaction in the Navy through passive-aggressive means, i.e., waking up late and responding to senior personnel with “glib” answers. Although the patient may adjust relatively well, he may present with behavioral problems in the future: therefore, it is advised the command document interference of work performance for possible future action, Currently, the patient is fit for full duty.
         Discharge Diagnoses: (1) Adjustment disorder, unspecified, acute, non-disabling; (2) Passive / aggressive traits; (3) Tension headaches and constipation (per patient report).
         Discharged from hospital 960207.
960827:  Unauthorized absence from USS RAINIER at PSNS, Bremerton, WA, as of 960827.

960904:  Returned to military control at 1100, 960904.

960905:  Unauthorized absence from USS RAINIER at PSNS, Bremerton, WA, as of 0730, 960905.

960925:  Surrendered on board USS RAINIER at 0001, 960925.
961022:  NJP for violation of UCMJ, Article 86 (2 Specs): Unauthorized absence 960827 – 960904, 960905 – 960925.
         Award: Forfeiture of $437.00 per month for 2 months (suspended for 6 months), restriction for 60 days, reduction to E-1. No indication of appeal in the record.

961022:  Retention Warning: Advised of deficiency (Violation of the UCMJ, Article 86-Unauthorized absence between 960927 – 960904 (a period of 8 days) and 960905 – 960925 (a period of 20 days) as evidenced by CO’s NJP of 961022.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

961123:  Suspension of punishment from CO’s NJP of 961022 vacated due to continued misconduct.

 961123:  NJP for violation of UCMJ, Article 86(11 Specs): Unauthorized absence 961022, 961104, 961105, 961110, 961112, 961113, 961116, 961117 (x2), 961120 and 961121;violation of UCMJ, Article 90: On 961120 willingly disobey a lawful order of a commissioned officer; violation of UCMJ, Article 91: On 961120 willfully disobey a lawful order of a chief petty officer and disrespectful in language toward a chief petty officer; violation of UCMJ, Article 92 (6 Specs): On 961115, 961116, and 961117 fail to obey a lawful order, and on 961117 and 961120 (x2) violate a lawful general regulation; violation of UCMJ, Article 134: On 961120 communicate a threat.
         Award: Forfeiture of $437.00 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
961128:  Applicant notified of intended recommendation for by reason of misconduct due to a pattern of misconduct as evidenced by CO’s NJP of 961022 and 961123, and misconduct due to commission of a serious offense as evidence by CO’s NJP of 961123. Applicant informed that if separation is approved, least favorable characterization of service possible is under other than honorable conditions.
961128:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
961201:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct and misconduct due to commission of a serious offense.

961217:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence from APOD on diverse occasion between 961124 – 961217.
         Finding: to Charge I and the specification there under, guilty.
         Sentence: Forfeiture of $437.00 per month for 1 month and 30 days of confinement.
         CA action 961218: Sentence approved and ordered executed.

970110:  Commander, Cruiser-Destroyer Group FIVE, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970122 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).

Issues 1. Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question. No such impropriety or inequity is evident during the Applicant’s enlistment. The Applicant contends that he served the United States well and he is entitled to an upgrade. 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. T he Applicant’s service was marred by disciplinary problems, including repeated unauthorized absences totaling 28 days, disrespect, orders violations, and the communication of threats. This misconduct resulted in two separate nonjudicial punishment proceedings, one retention warning, and one summary court-martial conviction for violations of UCMJ Articles 86, 90, 91, 92, and 134. Under applicable regulations, the violations of UCMJ Articles 90, 91, 92 and 134 are all considered serious offenses and substantiate the basis for the Applicant’s administrative separation. 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. Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service. Relief is not warranted.

 The Applicant contends her disciplinary problems were the result of stress caused by the relationship with his ex-wife. The NDRB recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that many members of the Navy endure hardships similar to those of the Applicant. It must further be noted that the vast majority of those members do not commit misconduct as a result of their problems. Despite their hardships, these sailors are still able to serve honorably and therefore earn their honorable discharges. In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. Relief denied.

There is no requirement or law that grants recharacterization solely on the issue of enhancing employment opportunities and this issue does not serve to provide a foundation upon which the Board can grant relief. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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. 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 971212, Article 3630605, SEPARATION OF ENLISTED PERSONNEL 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 violations of the Uniform Code of Military Justice, Article 90, assaulting or willfully disobeying a superior commissioned officer, 91, insubordinate conduct toward a warrant officer, noncommissioned officer, or petty officer, 92, failure to obey order or regulation, and 134, threat, communicating, 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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