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NAVY | DRB | 2005_Navy | ND0500366
Original file (ND0500366.rtf) Auto-classification: Denied


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

ex-MSSN, USN
Docket No. ND05-00366

Applicant’s Request
The application for discharge review was received on 20041227. The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to domestic hardship. The Applicant requests a documentary record 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 and narrative reason of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of Misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “My discharge was inequitable because it was based on a pattern of misconduct, without looking at my domestic situation at the time and unfair treatment of my superior officer. Pattern of misconducts where: First offense – 91 Aug 17, violation of UCMJ Article 86, Absent from unit, due to being late 2 hours and not calling in, because my car and wallet was stolen. Second offense – 92 Feb 01, violation of UCMJ Article 86, Absent from unit, due to domestic circumstances had requested leave on different occasions, but was still rejected by superior officer, without probable cause. Third offense – 92 Apr 08, violation of UCMJ Article 90, willful disobedience of a superior officer, for not reporting to the galley to see if the chief had anything for me to do and was not given the chance to explain that I was already released on liberty by the same chief he ordered me to report to. Instead, I proceeded to go on liberty, before I could depart the ship, my presence was requested to the supply office where I was informed on violating Article 90 of the UCMJ, even after the chief had told my superior, I was already released on liberty. My immaturity led me in the decision to request a discharge, instead of seeking legal action against discrimination on my superior officer. I have no regrets on being a part of our national defense, but I do regret settling for this type of discharge.”

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

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     880921 - 890509  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 890510               Date of Discharge: 920519

 Length of Service (years, months, days):

         Active: 03 00 10 (Does not exclude lost time)
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 30/32

 Highest Rate: MSSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (2)             Behavior: 3.60 (2)                OTA: 3.60

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM, SSDR, JMUA

 Days of Unauthorized Absence: 17

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

910823:  NJP for violation of UCMJ, Article 86: UA on 910817.
         Award: Restriction and extra duty for 15 days. No indication of appeal in the record.
920128:  Retention Warning from USS JOHN RODGERS (DD 983): Advised of deficiency (alleged spouse physical abuse), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920201:  To UA.

920218:  From UA, to duty.

920306:  NJP for violation of UCMJ, Article 86: UA on 920201-920218.
Award: Restriction and extra duty for 45 days. No indication of appeal in the record.
920310:  Retention Warning from USS JOHN RODGERS (DD 983): Advised of deficiency (UA), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
920428:  NJP for violation of UCMJ, Article 90: Willful disobedience of a superior officer on 920408.
         Award: Restriction and extra duty for 30 days. No indication of appeal in the record.
920501:  USS JOHN RODGERS (DD 983) notified Applicant of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct and due to the commission of a serious offense as evidenced by his record of NJPs. [Extracted from CO’s letter of 920504]
920504:  Applicant advised of rights, acknowledged that the separation may be under other than honorable conditions, and elected to obtain copies of the documents used to support the basis for the separation. [Extracted from CO’s letter of 920504]
920504:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense.

920512:  BUPERS 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 19920519 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. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor. T he Applicant’s service was marred by award of nonjudicial punishment (NJP) on three occasions for unauthorized absences and disobedience of the orders of a commissioned officer. Administrative separation for misconduct takes precedence over other potential reasons for separation. While he may feel that his domestic situation was a factor that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. T he Applicant’s allegations that he was treated unfairly by his chain of command does not refute the presumption that he was properly and equitably discharged under other than honorable conditions for misconduct due to a pattern of misconduct. Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety is evident during the Applicant’s enlistment. Additionally, 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 the service. Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his 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, effective 15 Aug 91 until
04 Mar 93), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A 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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