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NAVY | DRB | 2005_Navy | ND0500545
Original file (ND0500545.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND05-00545

Applicant’s Request
The application for discharge review was received on 20050126. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing discharge review before a traveling panel. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington, D.C. Metropolitan area. The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050511. 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. "I was brought up on charges of not properly being relieved off duty. It was my word virus and E-4. The E-4 said that he had saw me out in town the night I was supposed to have duty. Now here is the thing I made all of my mustards (formation) on time, I was on quarterdeck watch from 2400 until 0400. Morning mustard (formation) was at 0700.
He had no proof himself, for some reason he had a complex with me, and being the lower ranking enlisted I didn’t have a leg to stand on. The witness’s that I had from my duty section who knew I was on duty, like my duty section leader, the officer of the watch, and also a few shipmate’s were not allow to be in Captain’s mass to speak on my behalf. I took my sentence wrong or not, I was giving 45 days extra duty 45 days restriction. While on my restriction the man who raised me (my grandfather) died. I was trying to get some help from E-7 and First LT. to go home to his funeral, but my request was denied. While on extra duty the petty officer in charged told me to get my lazy ass down in the engine room and clean out the oil bilge. I said you don’t have to talk to me like I’m a dog. He said "Forget it let’s go see the master-at-arms to bring me up on charges again, for disobeying a lawful order, I told the master-at-arms how he talked to me and all I said was "I’m no dog'! I wasn’t being insubordinate I made a statements.
I go to Captain’s mass while on restriction, the captain ended my career. I had never been in trouble before, now this? Just like that out of all I did to get in the Navy. My hard training, and my hard studying gone a total loss. So that’s my issue, I didn’t think I was treated fairly.”


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
No additional documentation was submitted by the Applicant

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     950822 - 960624  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 960625               Date of Discharge: 980605

 Length of Service (years, months, days):

         Active: 01 11 10 (Does not exclude lost time)
         Inactive: None

 Age at Entry: 18                          Years Contracted: 3

 Education Level: 12                        AFQT: 33

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA*                 Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR

 Days of Unauthorized Absence: 27

No Marks Made available for review.

 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 :

971107:  NJP for violation of UCMJ, Article 86 Unauthorized absence; violation of UCMJ, Article 107 Making false statement.
Award: Restriction and extra duty to the limits USS TICONDEROGA
(CG 47) for 30 days. No indication of appeal in the record.
980326:  NJP for violation of UCMJ, Article 91 Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer; violation of UCMJ, Article 92 Failure to obey order or regulation.
         Award: Forfeiture ½ pay per month for 2 months (suspended for 3 months), 45 days restriction and extra duty to the limits of USS TICONDEROGA (CG 47), reduction to E-2. No indication of appeal in the record.

980326:  Retention Warning: [Extracted from CO, USS TICONDEROGA (CG 47) notification letter of 980802 to Bureau of Naval Personnel ] Advised of deficiency (v iolation of UCMJ, Article 91 Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer; violation of UCMJ, Article 92 Failure to obey order or regulation). Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. Retention warning issued without member's signature due to member going UA following NJP of 980326.
980326:  To unauthorized absence from USS TICONDEROGA (CG 47) at 1030 this date.

980415:  Missed ship's movement from Pascagoula, MS this date.

980422:  From unauthorized absence from USS TICONDEROGA (CG 47) at 0835 this date; surrendered.

980508:  NJP for violation of UCMJ, Article 86 Unauthorized absence from 980326 to 980422 (27 days/S), violation of UCMJ, Article 87 Missing ship’s movement; violation of UCMJ, Article 92 Failure to obey order or regulation; violation of UCMJ, Article 134 Breaking restriction.
Award: 3 days bread & water at Naval Station Norfolk Brig. No indication of appeal in the record.
980508:  Counseling Entry: Advised of deficiency ( violation of UCMJ, Article 86 Unauthorized absence from 980326 to 980422 (27 days/S), violation of UCMJ, Article 87 Missing ship’s movement; violation of UCMJ, Article 92 Failure to obey order or regulation ). Notified of corrective actions and assistance available and advised of consequences of further deficiencies.

980513:  Applicant notified of intended recommendation for discharge with the least favorable characterization under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
980519:  Applicant, advised of rights to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

980604:  COMWESTHEMGRU directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

980802:  Commanding Officer, USS TICONDEROGA (CG 47) notified Bureau of Naval Personnel (PERS-83) of Applicant’s discharge on 980605 under other than honorable conditions by reason of misconduct due to a pattern of misconduct. Commanding Officer's comments (verbatim): SA S_'s pattern of misconduct portrays an irresponsible sailor who lacks the maturity to remain in the military service and fulfill his obligations. His violation of the UCMJ has led to the recommendation of separation under Other Than Honorable conditions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980605 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, as a matter of equity, that he was not treated fairly during his time in service and that his problems in the Navy can be attributed to not being believed as a lower-ranking enlisted person, verbally standing up for himself to a more senior enlisted person, not being allowed witnesses to testify on his behalf at his nonjudicial punishment (NJP) proceedings, and the death of his in loco parentis grandfather. While the Applicant may feel that these issues are the underlying cause of his behavior, he has not provided, nor does the record reveal, any documentary evidence to support his claims. Further, the Applicant's records do not refute the presumption of regularity in this case nor do they substantiate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief on this basis is denied.

In the Applicant's case, an other than honorable discharge is warranted because 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 on 980326 and 980508 and three NJP proceedings on 971107, 980326, and 980508 for violations of the following Articles of the UCMJ: 86 (unauthorized absence (a total of two specifications)), 87 (missing ship’s movement), 91 (insubordinate conduct), 92 (failure to obey order or regulation (a total of two specifications)), 107 (making false statement), and 134 (breaking restriction). 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.

Additionally, t he Board could discern no impropriety in the discharge process. The record contains no evidence of any wrongdoing by the Applicant’s chain-of-command or anyone else in the discharge process. The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. As such, this Board presumed that Applicant’s discharge was regular in all respects. Relief on this basis is also denied.

The following is provided for the edification of the Applicant. 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 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 documentation for the Board to consider. Relief on this basis cannot currently be granted.

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. 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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