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NAVY | DRB | 2005_Navy | ND0500723
Original file (ND0500723.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND05-00723

Applicant’s Request
The application for discharge review was received on 20050323. The Applicant requests the Discharge 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 designate a representative on the DD Form 293. Subsequent to the application, the applicant obtained representation by American Legion.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060112. 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 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 name is E_ S_, I’m a former United States Sailor aboard the U.S.S. Theodore Roosevelt CVN-71. I come to you respectfully requesting an upgrade to my military discharge. My request is based upon the lack of resources available to me, mishandling of evidence and the unjust decision that was made concerning my case. I was not treated as fairly as the opposing side was. My evidence as well as my witnesses was not allowed to be present. False statements and documents were used that I was not aware of. My testimony/defense came as a shock to my Commanding Officers, nevertheless; it was over looked in spite of my rank (E-2). Following my testimony there was a fifteen-minute interval between the Commanding Officers and my Superiors, in which I was asked to leave. Upon my return to my NJP hearing, it was concluded that I was to receive an Administrative Discharge for my punishment.

My request has been made known; my reason for justification is the life that I’ve lived after the military. I’ve suffered much lose due the discharge that I take with me everyday. My educational benefits were taken away from me, which resulted in me having to apply for a student loan to attend school. I’m attending Tidewater Tech located in Newport News, VA. Looking to graduate in June 2005. My job search has not been so good. Society is afraid to give me a chance to show that I’m worthy of giving a job. This situation has also taken allot from the social life that I have with my family. Writing this request and taking a big step back in time to fix this error is not only the first step for me, it’s also a first step for the person reading my letter. I hope you consider my request.
Thank you for taking the time to read my letter.”

 “Sincerely,
[signed] E_ C. S_ (Applicant)”

Representative submitted no issues.

 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)     20011003 - 20011114      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20011115             Date of Discharge: 20040624

 Length of Service (years, months, days):

         Active: 02 07 10 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 36
         Confinement:              none

 Age at Entry: 20

 Years Contracted: 4 (12 month extension)

 Education Level: 12                                 AFQT: 41

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.0 (1)              Behavior: 1.0 (1)                 OTA : 1 .50

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


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

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

020904:  Applicant to unauthorized absence at 0800 on 020904.

 020906:  Applicant from unauthorized absence at 0700 on 020906 (2 days/surrendered).
030726:  Applicant to unauthorized absence at 0700 on 030726.

 030728:  Applicant from unauthorized absence at 0730 on 030728 (2 days/surrendered).
030819:  NJP for violation of UCMJ, Article 86: UA from 26 July 2003 –28 July 2003.
         Violation of UCMJ, Article 91: Disrespect to a First Class Petty Officer.
         Award: Forfeiture of $675 per month for 2 months, restriction and extra duty for 15 days, reduction to E-2. No indication of appeal in the record.

030820:  Retention Warning: Advised of deficiency (CO’s NJP held 19 AUG 03 for violation of the UCMJ, Article 86-Unauthorized absence (03/07/26-03/07/28) and Article 91-Disrespect to a First Class Petty Officer.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 040601:  NJP for violation of UCMJ, Article 86: (4 specs) UA on divers occasions from 29-30 March 2004, 6-7 April 2004, 30 April – 4 May 2004, 4 May – 17 May.
 Violation of UCMJ, Article 91: (3 specs) Willful disobeying an order on 15 April and 1 June 2004; and disrespect to a senior chief petty officer on 1 June 2004.
         Award: Restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record [Extracted from CO’s LTR in case file].
040601:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct pattern of misconduct and misconduct commission of a serious offense [Extracted from case file].

040601:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to submit statement to the administrative board or to the separation authority in lieu of a board and the right to obtain copies of the documents used to support the basis for the separation [Extracted from case file].
040608:  Commanding Officer, USS THEODORE ROOSEVELT (CVN-71) recommended discharge under other than honorable conditions by reason of pattern of misconduct and misconduct commission of serious offense. Commanding Officer’s comments: “AR S_ (Applicant) first appeared before me at CO’s Mast on 20 August 1993 for unauthorized absence and disrespect to a first class petty officer. At that time, he worked in the Air Department. He was punished, counseled via a Page 13 warning, and directed to conform his behavior to military standards. He became an administrative burden to the Air Department. It did not take AR S_ (Applicant) long to begin behaving the same way he did while attached to the Air Department. His numerous instances of unauthorized absence offenses and disrespect to senior leadership are indicative of his character. He blames everyone for his problems, but himself. He has been given every opportunity to abide by the rules and regulations. His behavior is a detriment to the good order and discipline of my command. Accordingly, I recommend he be separated with a discharge characterized as Other than Honorable. [Extracted from case file].”

040617:  Commander, Cruiser-Destroyer Group EIGHT directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct [Extracted from case file].

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20040624 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of under other than 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).
The Applicant requests an upgrade of his discharge to Honorable based on issues of impropriety and post service conduct. Th e Applicant states that his unjust discharge and characterization of service were the result of his command’s use of improper procedures, false statements, and the denial of his right to due process (i.e. denied the right to present evidence and witnesses in his defense). The Applicant also states that he has suffered losses since his discharge. The Applicant is attending school, but laments the fact that he had to apply for student loans, since losing his educational benefits and has had difficulty with family relationships and finding a job.

The Board found that the Applicant's discharge was proper and equitable. The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted. There is no evidence of impropriety or procedural irregularities in the Applicant's discharge. The Board advises the Applicant that 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:
•         1 retention warning for violations UCMJ, Article 86 and Article 91
•         2 non judicial punishments

o        20030819: for violations of:
♣         Article 86: UA from 26 July 2003 – 28 July 2003
♣         Article 91: Disrespect to a First Class Petty Officer
o        20040601: for violations of:
♣         Article 86: (4 specs) UA on divers occasions:
•         29 – 30 March 2004
•         6 – 7 April 2004
•         30 April – 4 May 2004
•         4 May – 17 May 2004

♣         Violation of UCMJ, Article 91: (3 specs)
♣         15 April
♣         1 June 2004
♣         1 June 2004 (disrespect to a SCPO)
Violations of Article 86 and 91 are considered serious offenses and typically warrant a punitive discharge if adjudged at a special or general court-martial. The board found that the Applicant acknowledged and waived his rights to administrative review. The Applicant was notified that by waiving his rights and accepting an other than honorable discharge, he could possibly encounter significant difficulties in obtaining employment and other benefits. The Applicant was afforded the appropriate due process during the processing of his case. The NDRB found that the Applicant was accountable for his actions and that his co nduct, 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 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 the 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 post-service 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), re-issued October 2002, effective 22 Aug 2002 until 25 April 2005, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

B. The Manual as part of the sentence upon conviction court-martial by a special or general for violation of the UCMJ, Articles 86: and 91.

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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