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NAVY | DRB | 2005_Navy | ND0500570
Original file (ND0500570.rtf) Auto-classification: Denied


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

ex-AA, USN
Docket No. ND05-00570

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. 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: 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 that my discharge was inequitable because it was based on my determination not to be held behind. I became extremely upset and decided to voice my opinion when I was instructed to be relieved of training and remain in a recuperating unit until my injuries were less severe. At that time, I believe that my injuries were not severe enough and that I could have proceeded on with my training. However, the medical physicians disagreed. As time passed, I became embarrassed and worthless and demanded to be fit for duty, the superiors took my actions as disrespect. I had absolutely no intention of being disrespectful, I was only determined not to be classified as weak, stand tall, and become a proud soldier of the United States Navy.”
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)     000721 - 001002  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 001003               Date of Discharge: 010907

 Length of Service (years, months, days):

         Active: 00 10 07                  (Excludes lost time)
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

Education Level: 12                        AFQT: 31

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA*                 Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 27

*No Marks made available for review.

 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 :

001116:  Retention Warning: Advised of deficiency (Violation of RTC rules and regulations: Recruit to Recruit contact.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010405:  Retention Warning: Advised of deficiency (SR failed battle stations due to failure to complete time matrix from BLDG 1312 to BLDG 1414. SR completed 9 of 12 events with team Juliet at 0610. Second Attempt.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010502:  NJP for violation of UCMJ, Article 86: UA on or about 010405 until on or about 010418.
Award: Forfeiture of $245.00 pay per month for 1 month, restriction and extra duty for 14 days (suspended for 6 months). No indication of appeal in the record.
010502:  Retention Warning: Advised of deficiency (Unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010606:  NJP for violation of UCMJ, Article 91: Having received a lawful order from OS1 D__ E. M___, USN, to place her belonging in the van, on or about 010515, willfully disobeyed the same.
         Award: Forfeiture of $245.00 pay per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.

010608:  Applicant notified of intended recommendation for discharge with least favorable characterization of service as under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by OIC’s NJP of 010501 and 010606, misconduct due to commission of a serious offense as evidenced by OIC’s NJP of 010606.
010608:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

010608:  To unauthorized absence at 2230.

010610:  Surrendered on board NAVCRUITRACOM Great Lakes, IL 1210.

010808:  NJP for violation of UCMJ, Article 86: UA on or about 010706 until on or about 010721.
         Award: Forfeiture of $245.00 pay per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.
010814:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense. By a vote of 2 to 1, the Board found that the misconduct warranted separation. The board recommended by a vote of 2 to 1 that the Applicant be discharged general (under honorable conditions).

010904:  Commanding Officer authorized applicant’s discharge 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 20010907 with a general (under honorable conditions) character of service for misconduct due to a pattern of misconduct (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

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. 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. The Applicant’s service was marred by three retention warnings and three nonjudicial punishment proceedings for violations of Articles 86 and 91 of the UCMJ. The Applicant’s violation of Article 91 is considered commission of a serious offense. The Applicant spent a total of 27 days in unauthorized absence. 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 and falls far short of that required for an upgrade of her characterization of service. Relief is not warranted.

The Applicant contends that her discharge is inequitable because it was based on her demands to be deemed fit for duty. The Applicant was recommended for separation by reason of misconduct due to commission of a serious offense and by reason of misconduct due to a pattern of misconduct. An Administrative Separation Board determined that the Applicant had committed a serious offense and that the Applicant had committed misconduct due to a pattern of misconduct and that the Applicant’s conduct merited separation. The record contains no evidence of any wrongdoing by the Applicant’s Commanding Officer or anyone else for that matter 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 denied.

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), Change 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

B. In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 91, insubordinate conduct, if adjudged at a Special or General Court Martial.

C. 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.

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 E. 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 DC 20374

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