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NAVY | DRB | 2005_Navy | ND0500523
Original file (ND0500523.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND05-00523

Applicant’s Request
The application for discharge review was received on 20050202. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing before the board in the Washington, D.C. Metropolitan area. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050608. 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)/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. “I BELIEVE MY DISCHARGE SHOULD BE UPGRADED BECAUSE WHILE SERVING IN THE USN I WAS A SUPERIOR SAILOR. I RECEIVED HONORS WHILE ACHIEVING JUNIOR SAILOR OF THE QUATER BECOMING DECKS LEADING SEAMAN RECEIVING A MUST PROMOTE ON MY EVALUATIONS. WHILE IN SERVING IN THE MILITARY I WAS GIVEN MINIMAL INSTRUCTIONS ON JOB ASSIGNMENTS WHILE FINISHING MY ASSIGNMENTS ON TIME AND IN A PRODUCTIVE MANNER. I NEVER ONCE GOT INTO ANY TROUBLE ABOARD MY COMMAND UNTIL MY PERSONAL LIFE BECAME AN ISSUE. I BELIEVE EVERYONE MAKES MISTAKES AND I’VE HAD MY SHARE. IN MY HEART I SERVED MY COUNTRY TO THE BEST OF MY ABILITY WITH HONOR, COURAGE AND COMMITMENT. I ADMIT TO MY WRONG DOING-INS AND WOULD LIKE TO BETTER MYSELF BY GOING TO A UNIVERSITY AND IF AT ALL POSSIBLE REJOINING THE USN.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (member 4)
Letter of Commendation, Commander, Submarine Group TWO (Jan-Mar 2003)
Commanding Officer, RESOLUTE (AFDM 10) undated ltr, Authorization to assume Title and Wear Uniform of Petty Officer Third Class
Letter of Appreciation, Commanding Officer, USS PHILADELPHIA (SSN 690), E. C. C_, dated May 16, 2002
Certificate of Completion, Navy College Learning Program, English 301, Mathematics 105 and Reading 205, date September 30, 2002
Administrative Remarks, Commander, Submarine Force U.S. Atlantic Fleet Battle “E” Winner 2002, dated January 03, 2001
Evaluation Report & Counseling Record, dated July 16, 2002 to August 15, 2002 (2 pages)
Evaluation Report & Counseling Record, dated July 16, 2002 to July 15, 2003 (2 pages)
Applicant’s DD Form 214 (member 1)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     010824 - 011001  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 011002               Date of Discharge: 040401

 Length of Service (years, months, days):

         Active: 02 06 00
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 37/42

 Highest Rate: BM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.67 (3)             Behavior: 3.00 (3)                OTA: 2.87

 Military Decorations: None

 Unit/Campaign/Service Awards: NE R, NDSM, Flag Letter of Commendation

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

 Chronological Listing of Significant Service Events :

031028:  NJP for violation of UCMJ, Article 134: Disorderly conduct.
 Specification: In that Seaman Q_ J. B_ (Applicant), United States Navy, on board RESOLUTE, Norfolk Virginia, on or about 24 October 2003, was arrested for disorderly conduct and behaved in a manner which brought discredit upon the armed forces, deviated from the good order and discipline expected of Sailors.
         Award: Dismissed with warning and reprimanded. Ordered: Family Advocacy for Anger Management.
         [Extracted from CO, RESOLUTE (AFDM 10) letter of March 2, 2004].

031028:  Retention Warning: Advised of deficiency (Disorderly conduct.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

031212:  NJP for violation of UCMJ, Article 92: Failure to obey lawful order.
 Specification: In that, BM3 Q_ J. B_ (Applicant), United States Navy, RESOLUTE (AFDM 10), Norfolk, VA, having been given a Military Protective Order (MPO) dated 20 November 2003 to 19 December 2003 by Commanding Officer RESOLUTE (AFDM 10) ordering her not to have any contact with FN M_ R. R_, (SS#), did on or about 09 December 2003 break into FN R_ barracks room and was apprehended by Sewell’s Point Police for breaking and entering. When confronted by her chain-of-command the morning of 10 December 2003, she admitted to breaking into FN R_’s room and having contact with FN R_, on many occasions, since being given the MPO.
         Award: Restriction and extra duty for 45 days (suspended for 6 months), reduction to E-3 (suspended for 6 months). No indication of appeal in the record.
031217:  General District Court, Norfolk, VA: Applicant convicted of making obscene phone calls.
         Award: imposed 040217, $200.00 fine, Locks program, Anger management course, No contact with party/member or will serve 30 days in jail.
040112:  Suspension of NJP of 031211 vacated.

 040112:  NJP for violation of UCMJ, Article 92: Failure to obey lawful order.
Award: Restriction for 45 days and reduction to E-2. No indication of appeal in the record. [Extracted from CO’s letter].
040112:  R etention Warning: Advised of deficiency (Failure to obey order or regulation in reference to personal behavior and military conduct off duty), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

040223:  Violated NAVINST 1620.40: Restriction personnel rules and regulations.
Award: Loss of all privileges for 72 hours. [Extracted from CO’s letter].
040302:  Applicant notified of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct and misconduct due to a commission of serious offense. Applicant notified that if separation is approved the least favorable characterization of service possible is under other than honorable conditions.
040302:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27(b), elected all rights, including administrative board.
040302:  Commanding Officer, RESOLUTE (AFDM 10), recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. Commanding Officer’s comments (verbatim): SA B_ (Applicant) has become an ever-increasing burden on the U. S. Navy. In addition to the three Captain’s mast she has been to, she has had several court appearances for various minor civilian problems. These problems range from assault charges and failure to pay debts. SA B_ (Applicant) has problems with authority and lacks the potential for continued naval service. Per reference (a) [MILPERSMAN 1910-140], she is being processed for administrative separation. I recommend that she be separated from the United States Navy with an Other Than Honorable discharge.

040318:  Applicant notified of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct, by reason of misconduct due to a commission of serious offense, and by reason of misconduct due to civilian conviction. Applicant notified that if separation is approved the least favorable characterization of service possible is general (under honorable conditions).
040318:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27(b), elected all rights, including general court-martial convening authority review.

040318:  Commanding Officer, RESOLUTE (AFDM 10), recommended discharge with a general (under honorable conditions) by reason of misconduct due to a pattern of misconduct, by reason of misconduct due to commission of a serious offense and by reason of misconduct due to civilian conviction.

040325:  Commander, Submarine Group TWO, authorized the Applicant's discharge with a general (under 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 20040401 with a general (under 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. 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 she served the United States well and she 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 disorderly conduct, orders violations, and a civilian conviction for making obscene phone calls. This misconduct resulted in three separate nonjudicial punishment proceedings for violations of UCMJ Articles 92 and 134. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her 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 her characterization of service. Relief is not warranted.

There is no requirement or law that grants recharacterization solely on the issue of enhancing or obtaining educational 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.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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), re-issued October 2002, effective 22 Aug 2002 until Present, 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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