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NAVY | DRB | 2005_Navy | ND0500559
Original file (ND0500559.rtf) Auto-classification: Denied


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

ex-DKSA, USN
Docket No. ND05-00559

Applicant’s Request
The application for discharge review was received on 20050208. The Applicant requests the characterization of service received at the time of discharge be changed to honorable or 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 20050601. 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. “BECAUSE I HAVE LEARNED THAT I MAKE A GRAVE MISTAKE AND WANT TO RIGHT MY WRONGS. G.I. BILL BENEFITS AS WELL. I WAS STILL A TEEN WHEN I WAS DISCHARGED AND DID NOT REALIZE THE PROBLEMS I WOULD HAVE BY NOT STAYING IN THE ARMED FORCES. I HAVE MISSED OUT ON BENEFITS AND WOULD LIKE AT LEAST PARTIAL BENEFITS FOR NEARLY A YEAR AND A HALF OF SERVICE I PERFORMED. THANK YOU FOR YOUR TIME.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     970218 - 971026  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 971027               Date of Discharge: 990129

 Length of Service (years, months, days):

         Active: 01 03 03 (Not to include lost time)
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 59

 Highest Rate: DKSA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*                 Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: AFEM, NUC

 Days of Unauthorized Absence: 50

*No marks found in Applicant’s service record.

 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 :

971027:  Applicant reported for initial tour of active duty.

980402:  Reported aboard USS Bunker Hill (CG-52).

980603:  NJP for violation of UCMJ, Article 134: Disorderly conduct, drunkenness; violation of UCMJ, Article 92: Failure to obey order or regulation.
         Award: Forfeiture of $463.00 pay per month for 1 month, restriction and extra duty for 45 days. No indication of appeal in the record.

980603:  Retention Warning: Advised of deficiency (Violation of the UCMJ, Article 134, Disorderly conduct, drunkenness, and 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.

981125:  Unauthorized absence from USS BUNKER HILL (CG 52) at San Diego, CA, at 0700 as of 981124.

990113:  Surrendered at or around 1830 on board USS BUNKER HILL (CG 52), at San Diego, CA. (50 Days)
990115:  NJP for violation of UCMJ, Article 86 (2 Specs; 6 days and 50 days): Unauthorized absence.
Award: Forfeiture of $440.00 pay per month for 2 month, restriction and extra duty for 45 days. No indication of appeal in the record.
990115:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service is under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by violation UCMJ article 86 (UA for 50 days) in your current enlistment and misconduct due to a pattern of misconduct as evidenced by two NJP’s within your current enlistment.
990115:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, waived all rights.
990121:  Commanding Officer, USS BUNKER HILL, recommended discharge under other than honorable conditions by reason of misconduct due to a commission of a serious offense and misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ within his current enlistment. Commanding Officer’s comments (verbatim): DKSR C_ (Applicant) has been aboard my command less than a year. During this time his performance has been inadequate and unacceptable. He has displayed complete immaturity and irresponsibility with respect to his misconduct and drunkenness on liberty, his poor performance and his most recent UA’s, one for over a month and a half. This kind of performance is intolerable.
         DKSR C_ (Applicant)’s misconduct has consumed an inordinate amount of supervisory time and patience. His chain of command has exhausted every means possible to improve has attitude and performance. He has shown no effort to improve himself or to become a viable member of my crew. Additionally, although he was a CAAC Level II graduate, he was difficult and uncooperative during and after his treatment. He has become an administrative burden, and a detriment to crew morale, good order, and discipline. I do not trust him to work in my disbursing office. I do not trust him as s sailor. DKSR C_ (Applicant) does not possess potential for further Naval service, and is recommended to be discharged with and Other than Honorable Characterization of service.

990128:  COMCRUDESGRU THREE directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

990129:  DD Form 214: Applicant discharged

990223:  CO, USS BUNKER HILL, forwarded administrative discharge package to BUPERS.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990129 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: 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. The Applicant’s service was marred by a retention warning, two nonjudicial punishment proceedings for violations of Articles 86 (2 specifications) (unauthorized absence), 92 (failure to obey order or regulation) and 134 (disorderly conduct, drunkenness) of the UCMJ. The Applicant’s two nonjudicial punishment proceedings in a single enlistment and violation of the retention warning issued June 03,1998, meet the criteria for discharge by reason of misconduct due to a pattern of misconduct. 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 Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. There is no evidence of impropriety, inequity or procedural irregularities in the Applicant's discharge. The Applicant's misconduct is clearly documented. The Applicant was afforded the appropriate due process during the processing of his case. The Applicant acknowledged and waived his rights to administrative review.

The following in 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, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided 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. 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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