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NAVY | DRB | 2005_Navy | ND0500561
Original file (ND0500561.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND05-00561

Applicant’s Request
The application for discharge review was received on 20050210. The Applicant requests the characterization of service received at the time of discharge be changed to general (under honorable conditions). The Applicant requests a documentary record review. The Applicant listed the Veterans Service Office as the representative on the DD Form 293.

Decision

A documentary 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 3 to 2 that the character 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

No issues were submitted by the Applicant.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Department of Veterans’ Affairs, Statement in Support of Claim, dated March 22, 2005
Reference Letter from Applicant’s father (2 pages)
Reference Letter from Applicant’s mother (2 pages)
Fax Cover Sheet from Dallas County Veteran’s Service Office dated March 22, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     890405 - 890910  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 890911               Date of Discharge: 920128

 Length of Service (years, months, days):

         Active: 02 04 17
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 23

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.20 (2)             Behavior: 2.60 (2)                OTA: 3.30

 Military Decorations: None

 Unit/Campaign/Service Awards: SASM (2), NDSM, SSDR

 Days of Unauthorized Absence: 3

 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 :

900502:  NJP for violation of UCMJ, Article 128: Assault consummated by a battery.
         Award: 30 days correctional custody unit. No indication of appeal in the record.

900502:  Retention Warning from USS PYRO (AE-24): Advised of deficiency (At Commanding Officer’s Non-Judicial Punishment held on 900502 Applicant was found guilty of the following offense: Violation of UCMJ Article 128 (Assault)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910222:  UA from 0630-0648, 910222.

 910311:  UA from 0630-1800, 910311.

910321:  UA from 0630-0705, 910321.

910430:  UA from USS PYRO (AE-24) at NAS Alameda, CA.

910503:  Surrendered onboard USS PYRO (AE-24) (3days).

910610:  NJP for violation of UCMJ, Article 121: Wrongful appropriation.
         Award: Forfeiture of $376.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
920110:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful order.
Award: Restriction and extra duty for 30 days, reduction to E-1. No indication of appeal in the record.
undated:         Retention Warning from USS PYRO (AE-24): Advised of deficiency (Article 92, failure to obey a lawful order), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920115:  USS PYRO (AE-24) notified Applicant of intended recommendation for discharge by reason of commission of a serious offense as evidenced by the violation of UCMJ, article 92, failure to obey an order or regulation, article 128, assault consummated by battery and, article 121, wrongful appropriation, and by reason of pattern of misconduct as evidenced by three Non-judicial Punishment hearings during this enlistment. Applicant notified that if separation is approved, the least favorable characterization of service possible is under other than honorable conditions.
920116:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation and to submit statements on own behalf. The Applicant did not object to the separation.
920122:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.

920123:  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 19920128 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. 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. 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 an assault, wrongful appropriation and an orders violation. This misconduct resulted in three separate nonjudicial punishment proceedings for violations of UCMJ Articles 92, 121, and 128 as well as two counseling/retention warnings. 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. 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 his characterization of service. Relief is not warranted.

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, 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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