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NAVY | DRB | 2005_Navy | ND0500489
Original file (ND0500489.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-SH3, USN
Docket No. ND05-00489

Applicant’s Request
The application for discharge review was received on 20050202. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293. Subsequent to the application, the applicant obtained representation by American Legion.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060112. 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 General (Under Honorable Conditions) by reason of misconduct due to a pattern of misconduct .

The NDRB did note administrative error(s) on the original DD Form 214. Block 18,




PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“My discharge was improper because is based on an incident that took place at my barracks when attending physical security. I accidentally broke the leg of a chair in my room and I was put on report for destruction of gov’t property. I had to be back in San Diego, CA by 20020215 to get my son from my caregiver giver because my caregiver was going out of town on 20020216. This incident was going to cause me to be back in Norfolk, VA longer than that date. I offered to pay for the chair out of my pocket but the chain of command wouldn’t accept my offer. My caregiver situation was explained to them with my son but no action was taken. I attempted to run a leave chit but it didn’t processed by the chain of command. Because of this, I went on an unauthorized absence to make the appropriate care for my son. When I went back to Norfolk, VA. I had to see the Captain for disciplinary action. The executive officer gave me the option to get out of the Navy since it was an inconvenience for my son and I so I took that option. On my DD 214, I have a general discharge under honorable conditions and it also says reason of misconduct, which is inaccurate. So can you please change my discharge to an honorable discharge? I’m having a hard time getting a job right now. I will appreciate your consideration very much. Thank you.”
Representative submitted no issues.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Page from Enlistment or Reenlistment Contract
Letter from Applicant
Evaluation Report & Counseling Record (6 pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19970826 – 19971102               COG
         Active: USN                        19971103 – 20011101               HON

 Period of Service Under Review :
Date of Enlistment: 20011102             Date of Discharge: 20020809

 Length of Service (years, months, days):

         Active: 00 08 19 (Does exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 26 days
         Confinement:              none

 Age at Entry: 22

 Years Contracted: 4

Education Level: 12                                 AFQT: 39

 Highest Rate: SH3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.0 (1)              Behavior: 4.0 (1)                 OTA: 3 .71

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Sea Service Deployment Ribbon (3), Armed Forces Expeditionary Medal, Navy “E” Ribbon (2), National Defense Service Medal.


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

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

011102:  Reenlisted this date for a term of 4 years.

020429:  NJP for violation of UCMJ, Article 86: (Absence without leave) absent on or about 1300, 020215 and remain so absent until on or about 0730, 020310.
         Violation of UCMJ, Article 108: (Military property of the United States-sales, loss, damage, destruction, or wrongful disposition).
         Award: Forfeiture of $840 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.

 020809:  DD Form 214: Applicant discharged general (under honorable conditions) by reason of misconduct pattern of misconduct, per MILPERSMAN 1910-140.

Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20020809 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of general (under honorable conditions). 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). The Board presumed regularity in the conduct of governmental affairs (E).
The NDRB found that the Applicant’s service record did not contain the administrative discharge package. When this occurs, the Board presumes regularity in the conduct of government affairs. In the Applicant’s case, the Board presumed that the Applicant’s discharge was regular in all respects. The Board otherwise discovered no impropriety after reviewing the Applicant’s case.

The Applicant requests an upgrade to his discharge characterization and a change to his narrative reason, which he states, is incorrect. The Applicant implies that his discharge was improper because it was based on one incident and on non-judicial actions that were without merit. The NDRB found credible evidence of misconduct in the service record of the Applicant, which did warrant processing for separation as initiated by the Applicant's command.

The NDRB advises the Applicant that 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. 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. T he Applicant’s service was marred by a nonjudicial punishment proceeding for violations of UCMJ Articles:

•         86 (absent without leave for 23 days) and
•         108 (Military property of the United States-sales, loss, damage, destruction, or wrongful disposition).

Violations of Article 86 and 108 are considered serious offenses and typically warrant a punitive discharge if adjudged at a special or general court-martial.

The Applicant states his disciplinary problems were the result of stress caused by a childcare issue. 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 most members of the Navy 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.

 The NDRB found that the Applicant’s service record was missing the administrative discharge package. In the Applicant’s case, the Board presumed that the Applicant’s discharge was regular in all respects. The Board discovered no impropriety after a review of the Applicant’s case.

The following is provided for the edification of the Applicant. 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, 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 post-service 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, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

B. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Articles 86 and 108 .

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 .

E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .

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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