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NAVY | DRB | 2005_Navy | ND0500324
Original file (ND0500324.rtf) Auto-classification: Denied


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

ex-MSSR, USN
Docket No. ND05-00324

Applicant’s Request
The application for discharge review was received on 20041214. 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 20050214. 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 reason for my request is, at the time of discharge mentally unhealthy. Since my separation I have concluded what the problem was. I have enclosed documents as evidence. I also am continuing my education at Mercer County Community College. I am majoring in Criminal Justice. It is important to me for personal and a career to have this discharged changed. This truly would mean alot to me.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter of Verification Behavioral Health Treatment Program, undated
Certificate of Congratulation (Completion of Intensive Outpatient Program), dated August 11, 2004
Student Class Schedule and Fee Statement from Mercer County Community College, dated 041026
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     001025 - 001128  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 001129               Date of Discharge: 020506

 Length of Service (years, months, days):

         Active: 01 05 08                  [Does not exclude lost time]
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 35

 Highest Rate: MSSA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.50 (2)             Behavior: 1.50 (2)                OTA: 1.92

 Military Decorations: None

 Unit/Campaign/Service Awards: BATTLE”E”, NDSM

 Days of Unauthorized Absence: 28

 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 :

010306:  Retention Warning: Advised of deficiency (Out of phase drinking), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010522:  Retention Warning: Advised of deficiency (Abuse of alcohol on Wednesday, May 16 and Thursday, May 17, 2001; Unauthorized absence on Wednesday, May 16 from 0730 to 1850 and Thursday, May 17 from 0730 to 1100.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010724:  NJP for violation of UCMJ, Article 86: Absence without leave, and failure to go to appointed place of duty.
         Award: Forfeiture of $521.40 pay per month for 1 month, restriction to USS MAHAN (DDG-72) for 30 days, extra duty for 30 days. No indication of appeal in the record.

011106:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
         Award: Restriction, extra duty and correctional custody for 21 days. No indication of appeal in the record. [Extracted from CO’s letter of 020323.]
011205:  NJP for violation of UCMJ, Article 86: (14 Specifications), failure to go to appointed place of duty/absence without leave, violation of UCMJ, Article 90: Willfully disobeying superior commissioned officer.
Award: Correctional Custody for 30 days defer to 011207. No indication of appeal in the record.
020110:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86.
         Specification: Absence without leave 011208 until 020105. Charge II: violation of the UCMJ, Article 87: (2 Specifications), Specification 1: Missing ship movement on 011210; Specification 2: Missing ship movement on 011217. Charge III: violation of the UCMJ, Article 134. Specification: Restriction breaking on 011208.
         Finding: to Charge I and the specification thereunder, guilty; to Charge II and the specifications, guilty; to Charge III and the specification thereunder, withdrawn.
         Sentence: Confinement for 30 days, reduction to E-1.
         CA action 020110: Sentence adjudged and ordered executed.
020123:  Applicant notified of intended recommendation for discharge by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct with the least favorable characterization of under other than honorable conditions possible.

020123:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
020323:  Commanding Officer recommended discharge by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.

020506:  COMCRUDESGRU 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 in absentia on 20020506 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).

Issue 1. The Applicant contends that his problems in the Navy can be attributed to being “mentally unhealthy.” While he may feel that his mental condition was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

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 two retention warnings and three nonjudicial punishment proceedings for violations of Articles 86 and 90 of the UCMJ, to include 28 days of unauthorized absence. The Applicant was also convicted at summary court-martial of violating Articles 86 and 87. Further, violations of Article 87 are considered serious offenses. 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 verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient documentation for the Board to consider. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. 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. 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 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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