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NAVY | DRB | 2005_Navy | ND0500626
Original file (ND0500626.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-SR, USNR
Docket No. ND05-00626

Applicant’s Request
The application for discharge review was received on 20050228. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and that the narrative reason for separation be changed to “Honorably.” The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051027. After a thorough review of the available 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 and narrative reason for discharge shall not change. The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to a pattern of misconduct .

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the attached document/letter:

“My discharge was inequitable because it was the result of reprisal from my supervisor (LPO). The event’s leading up to my recommendation for a discharge, and finally my discharge, was fueled by extreme prejudice, retaliation, and a implausible effort to discredit me by my supervisor. The reprisal began when I exercised my right to file an informal complaint with my chain of command, ultimately ending with the captain. The complaint implicated my supervisor in verbal abuse, assault and battery, discrimination and hardship. My complaints stemmed from my personal experience and were the experience of many others in my department/division. Shortly after my initial complaints, the reprisal began. I was told I would be made out to be an example to others in my division who think they can talk or complain. As a division, our supervisor harassed and stressed that no one would believe or care about our complaints of him because they would believe an 18 year veteran, over new recruits, such as we were. My supervisor made a great and successful effort to discredit me. Everything I did was put under a microscope, blown out of proportion and finally written up and disciplined for such things that would have been considered minor. I was very distraught, confused, and nervous at this point. No one offered or were helping me after the repercussions began, sympathy was all I got. So I made a leap of faith, I filled an official grievance with my command on board ship. I lined up witnesses and an investigation began. I was interviewed, and another one of my co-worker/witness was as well. Shortly there after, I was administratively discharged. The grievance, to my knowledge, was never concluded.
At the time, I was relieved to be discharged and ready to get away from it all. But now, I continue to feel the effects of my supervisors’ reprisal. My administrative discharge and my supervisor is a mark in my life that haunts me every time I apply for a job or talks about my past. I would like to bring this chapter of my life to a close…and move on.

In addition, my last evaluation report (attached) was completed by my supervisors supervisor (LCPO) A L H_, BMC(SW). It was dated January 19 th , 1998, only 2-3 months before my administrative discharge for ‘Patterns of Misconduct’.
It summarizes me as ‘Promotable’ and that I meet standards in Teamwork; Military Bearing and Character; Quality of Work; Professional Knowledge; and Equal Opportunity. I wish to point out the inconsistency with my evaluation report and, the reason given for my separation narrative: ‘Pattern of Misconduct’.

I have included the last 3 of my periodical “Evaluation/Counseling Reports”.

END
[signed] 20050218 ”


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Evaluation Report & Counseling Record (6 pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19941022             Date of Discharge: 19980424

 Length of Service (years, months, days):

         Active: 02 08 10
         Inactive: 00 09 23

 Time Lost During This Period (days):
         Unauthorized absence: none
         Confinement:              none

 Age at Entry: 17 (Parental Consent)

 Years Contracted: 8

Education Level: 12                                 AFQT: 42

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.0 (3)*             Behavior: 3.3 (3)*                OTA: 2 .94*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Navy ”E” Ribbon, Armed Forces Expeditionary Medal, National Defense Service Medal, Sea Service Deployment Ribbon

*Extracted from supporting documents provided by Applicant


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

GENERAL (UNDER HONORABLE CONDITIONS)/ PATTERN OF MISCONDUCT, authority: MILPERSMAN, Article 1910-140 (formerly 3630600).
Chronological Listing of Significant Service Events :

950814:  Commenced active duty for a period of 36 months.
950815:  Retention Warning: Advised of deficiency (Defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your pre-service civil involvement. (No license, 2/88, Alexandria, VA, Paid $100; Improper backing, 5/95, Berkley, CA, Paid $114.)) Discharge warning issued.
980210:  Retention Warning: Advised of deficiency (Violation of the UCMJ, Article 123-Forgery), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

980212:  NJP for violation of UCMJ, Article 123: Forgery.
         Award: Restriction and extra duty for 30 days, reduction to E-2. No indication of appeal in the record.

980320:  NJP for violation of UCMJ, Article 113: Misbehavior of a sentinel or lookout.
 Award: Reduction to E-1, recommended for administrative separation. No indication of appeal in the record.
Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19980424 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of general (under honorable conditions). 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). The Board presumed regularity in the conduct of governmental affairs (E)

 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 two retention warnings and two nonjudicial punishment proceedings for violations of Articles 113 and 123 of the UCMJ. The Applicant’s violations of Articles 113 and 123 are serious offenses. 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 Applicant states he filed a complaint against his supervisor because the supervisor “harassed and stressed” the Applicant’s division. The Applicant contends that his discharge is inequitable because the supervisor sought “reprisal” in response to the Applicant’s complaint. The Applicant further implies that the supervisor “put [the Applicant] under a microscope,” resulting in the adjudication of the Applicant’s violations of the UCMJ. The Board found no evidence in the Applicant’s service record or in the documentation provided by the Applicant that the Applicant’s nonjudicial punishment proceedings or subsequent administrative discharge were improper or inequitable. The Board found no evidence in the evidence of record or documentation provided by the Applicant that he was the victim of reprisal on the part of his supervisor or any one else in the Applicant’s chain-of-command. The Applicant’s misconduct is documented. The Applicant committed two serious offenses and received two retention warnings. The Board found the Applicant’s issue without merit. Relief denied.

The Applicant contends that his discharge “haunts” him whenever he applies for a job. 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. Relief on this basis is not appropriate.

The Applicant contends that his narrative reason for separation, misconduct due to a pattern of misconduct, is inconsistent with his evaluation reports. The Applicant substantiates this claim by providing three evaluation reports, covering the periods from 19960716 to 19980115. The evidence of record shows that the Applicant was warned on 19950815 and 19980210 that any further deficiencies would make the Applicant eligible for processing for administrative separation. Subsequent to these warnings, the Applicant was subject to two nonjudicial punishment proceedings for violations of the UCMJ. Due to the absence of a complete discharge package and under the presumption of regularity, the Board presumed the Applicant met the criteria for discharge by reason of misconduct due to a pattern of misconduct at the time the Applicant was processed. Relief on this basis 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), Change 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

B. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 113, misbehavior of a sentinel or Article 123, forgery.

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 .

E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .

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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