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NAVY | DRB | 2005_Navy | ND0500901
Original file (ND0500901.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND05-00901

Applicant’s Request
The application for discharge review was received on 20050428. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). 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 20050811. 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 and reason for 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 application:

“To be able to apply to government jobs without any Discrimination.”

 Applicant’s Remarks: “My wife is in the Navy. I went in at 18 years old. I was young and did stupid things. I made a couple mistakes in the Navy and wish I had a second chance. I’m hoping the government will give me another chance.”

 Documentation
Only the service and medical records were reviewed. The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20011221 - 20020702               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20020703             Date of Discharge: 20040317

 Length of Service (years, months, days):

         Active: 01 08 15
         Inactive: None

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

 Age at Entry: 18

 Years Contracted: 4

 Education Level: 10 (Job Corps)           AFQT: 32

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NA*                           Behavior: NA*             OTA: NA*

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214) : NATIONAL DEFENSE SERVICE MEDAL, NAVY “E” RIBBON, JOINT MERITORIOUS UNIT AWARD
* Not Available


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 :

030213:  NJP for violation of UCMJ, Article 117: Provoking speeches or gestures.
         Violation of UCMJ, Article 134: Drunkenness.
         Award: Forfeiture of $600.00 pay per month for 2 months, restriction and extra duty for 30 days, reduction to E-1. Reduction suspended for 6 months. No indication of appeal in the record.

030213:  Retention Warning: Advised of deficiency (Violation of UCMJ Article 117 (Provoking speeches or gestures), Article 134 (Drunkenness)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 030515:  NJP for violation of UCMJ, Article 86: Absence without leaves.
 Violation of UCMJ, Article 107: False official statement.
          Award: Forfeiture 1/2 months pay per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.

040114:  NJP for violation of UCMJ, Article 86: Absence without leave
 Violation of UCMJ, Article 92: Failure to obey.
Date of offense: 031231.
         Award: Forfeiture of $683.85 per month for 2 months, restriction and extra duty for 30 days, reduction to E-1. Forfeiture, extra duty and reduction suspended for 6 months. No indication of appeal in the record.

040127:  Forfeiture of pay and reduction in pay grade awarded at NJP on 040114 vacated due to continued misconduct.

040127:  NJP for violation of UCMJ, Article 86: Absence without leave.
 Violation of UCMJ, Article 92: Failure to obey.
Date of Offense: 14, 22, 23, and 24 January 2004.
          Award: Restriction and extra duty for 45 days. No indication of appeal in the record.

040128:  Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 134: Restriction, Breaking
 Specification: In that Seaman Apprentice D_ W. L_ (Applicant), USN USS LA SALLE (AGF 3), on active duty did, having been restricted to the limits of the USS LA SALLE, b y a person authorized to do so, did, on board USS LA SALLE, on or about 27 January 2004, break said restriction by not being in his rack by 2200 per his restriction orders.
040128:  Charges referred to summary court-martial.

040129:  Summary Court-Martial.
         Charge: violation of the UCMJ, Article 134: In that Seaman Apprentice D_ W. L_ (Applicant), USN USS LA SALLE (AGF 3), on active duty did, having been restricted to the limits of the USS LA SALLE, by a person authorized to do so, did, on board USS LA SALLE, on or about 27 January 2004, break said restriction by not being in his rack by 2200 per his restriction orders.
          Finding: to Charge and the specification thereunder, guilty.
          Sentence: Confinement for 21 days, forfeiture of $827.24, reduced to E-1.
         CA action: Not found in service record.
040129:  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.
040129:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.
040201:  Commanding Officer, USS LASALLE, recommended discharge with an under other than honorable conditions by reason of misconduct due to a pattern of misconduct. Commanding Officer’s comments: “SR L_ (Applicant)’s actions onboard have been completely unacceptable and detrimental to LASALLE’s mission. He has become a burden to his shipmates and his chain of command. My desire is that his characterization of service be other than honorable.”

040217:  COMFAIRMED Naples, Italy directed the Applicant's discharge with an under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20040317 by reason of misconduct due to a pattern of misconduct (A) 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 (B and C).

 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 repeated incidents of misconduct including unauthorized absences, orders violations, a false official statement, provoking speech and gestures, drunkenness and breaking restriction. This misconduct resulted in one Page 13 counseling/retention warning and four nonjudicial punishment proceedings for violations of UCMJ Articles 86, 92, 107, 117, and 134. The Applicant was also convicted at summary court-martial for one violation of the UCMJ Article 134. 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.

 There is no requirement or law that grants recharacterization solely on the issue of enhancing employment opportunities and this issue does not serve to provide a foundation upon which the Board can grant relief. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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), re-issued October 2002, effective 22 Aug 2002 until Present, 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 V, Para 502, Propriety .

 C. 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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