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NAVY | DRB | 2005_Navy | ND0500960
Original file (ND0500960.rtf) Auto-classification: Denied


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

ex-FA, USN
Docket No. ND05-00960

Applicant’s Request
The application for discharge review was received on 20050516. 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 20050915. 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 3630600.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I grown up now, while at the time in the Navy I was not responsible. Now I care very much, and want again to serve my country in the Branch services.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Job/character letter from City of Vancouver, dated April 9, 1997
Job/character letter from City of Vancouver, dated February 21, 1997
Character reference letter from W_ J_, AICP, dated August 1, 1996
Letter from Board of Directors, Committee on Street Lights, Dreamland Villa Community Club, dated October 11, 1999
Letter of appreciation from D_ F_, dated December 3, 1999

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     920831 - 930801  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 930802               Date of Discharge: 950922

 Length of Service (years, months, days):

         Active: 02 01 21
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 35

 Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.10 (2)             Behavior: 3.00 (2)                OTA: 3.10

 Military Decorations: None

 Unit/Campaign/Service Awards: Meritorious Unit Citation, Navy “E” Ribbon, National Defense Service Medal, Sea Service Deployment Ribbon

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

940324:  Counseling: Personal performance.

940325:  Counseling: Ineffective performance.

940330:  Counseling: Personal performance.

940405:  Counseling: Performance, disobedience, personal behavior, disrespect.

940414:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful order, violation of UCMJ, Article 121: Larceny of government property, violation of UCMJ, Article 134: Threat, communicating.
         Award: Forfeiture of $100 per month for 1 month, restriction for 7 days and extra duty for 14 days. Forfeiture of $50.00 suspended for 3 months. No indication of appeal in the record.
940414:  Retention Warning from USS CALIFORNIA (CGN 36): Advised of deficiency (Violations of UCMJ Article 92 (Failure to Obey a Lawful Order), Article 121 (Larceny of Government Property) and Article 134 (Communicating Threat)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

940422:  Counseling: Performance.

 940502:  Counseling: Performance, responsibilities.

940527:  Counseling: Performance, disobedience, responsibilities.

940713:  Counseling: Performance, responsibilities.

940716:  Psychiatric Evaluation: Assessment: Unspecified personality disorder with poor social skills.
940719:  Applicant’s 3M maintenance man qualifications removed due to performance deficiencies.
940727:  Counseling: Disobedience, personal behavior, disrespect.

 940815:  Counseling: Responsibility, failure to be at appointed place for muster, responsibilities, disobedience, personal behavior disrespect, and mess deck food off the mess decks.

940815:  Counseling: Disobedience, personal behavior and disrespect.

940908:  Psychiatric Evaluation: Impression: Schizoid traits to his personality but insufficient to make the full diagnosis of a personality disorder. AXIS I: Schizoid traits.

941004:  Applicant assigned extra military instruction for failure to return to ship at the prescribed expiration of liberty.
941108:  Counseling: Responsibilities, personal behavior and disrespect.

941111:  Counseling: Personal behavior and disrespect.

 941118:  NJP for violation of UCMJ, Article 91: Willful disobedience of a petty officer.
         Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 10 days. Forfeiture of $200.00 suspended for 4 months. No indication of appeal in the record.
941118:  Retention Warning from USS CALIFORNIA (CGN 36): Advised of deficiency (Violation of the Uniform Code of Military Justice Article 91 (Willful disobedience of a Petty Officer)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

941119:  Counseling from USS CALIFORNIA (CGN 36): 1. Over the last eight months, the following problems have been noted in your performance: a. You have twice received Commanding Officer’s nonjudicial punishment. On 94APR14, you were taken to Captain’s Mast for violating Article 92 (Disobedience of Other Lawful Order), Article 121 (Larceny) and Article 134 (Communicating Threat) of the Uniform Code of Military Justice. On 94NOV18 you were take to Captain’s Mast for violating Article 91 (Willful Disobedience of a Petty Officer) of the Uniform Code of Military Justice. b. You have proven yourself on numerous times untrustworthy to perform maintenance. Your maintenance qualification was removed on 94JUL19. Your subsequent 3M maintenance man requalification was withheld because you failed to demonstrate the integrity and skill necessary to perform maintenance. c. You have been counseled on numerous times regarding your personal behavior and your disrespect toward those in authority over you. 2. You have failed to perform to your potential while serving in the Electrical Division. Effective immediately, you are transferred to Auxiliaries Division.

 941202:  Vacate suspended forfeiture of $200.00 pay per month for 1 month awarded at CO’s NJP of 941118 due to continued misconduct.

941202:  NJP for violation of UCMJ, Article 86 (3 specs): Failure to go to appointed place of duty, violation of UCMJ, Article 90 (3 specs): Willful disobedience of a superior commissioned officer.
         Award: Forfeiture of $100 per month for 2 months, restriction and extra duty for 5 days. Forfeiture of $100.00 suspended for 4 months. No indication of appeal in the record.
941202:  Retention Warning from USS CALIFORNIA (CGN 36): Advised of deficiency (Violation of the Uniform Code of Military Justice Articles 86 (Failure to go to appointed place of duty) and 90 (Willful disobedience of a superior commissioned officer), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 950227:  Counseling: Personal behavior.

950324:  Vacate suspended forfeiture of $100.00 pay per month for 2 months awarded at CO’s NJP due to continued misconduct.

 950324:  NJP for violation of UCMJ, Article 91 (2 specs): Willful disobedience of a petty officer.
         Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. Appealed: 950329. Appeal denied 960425.
950414:  Psychiatric Evaluation: Diagnostic Impression: AXIS I: Occupational problem. AXIS II: Personality disorder, not otherwise specified, with Schizoid, narcissistic and compulsive features.
         Recommendation: 1) Patient is fit for duty from a psychiatric standpoint. He is responsible for his actions and should be held accountable for his behavior. He is not currently in need of nor does he require psychiatric hospitalization at this time. 2) While not considered mentally ill, member manifests a longstanding disorder of character and behavior which is of such severity as to render the individual incapable of serving adequately in the Navy. 3) Member is recommended to attend the weekly Transition Group at 1300 each Wednesday until current processing for administrative separation is accomplished.
950428:  Counseling: Responsibilities, performance and personal behavior.

 950512:  Commanding Officer, USS CALIFORNIA (CGN 36) notified Applicant of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct as evidenced by by violation of UCMJ Article 92 (Failure to Obey a Lawful Order), violation of UCMJ Article 121 (Larceny of Government Property), and violation of UCMJ Article 134 (Communicating a Threat) as determined by CO’s NJP 14 Apr 94; violation of UCMJ Article 91 (Willful Disobedience of a Petty Officer) as determined by CO’s NJP of 18 Nov 94; violation of UCMJ Article 86 (Failure to go to Appointed Place of Duty, three specifications) and violation at UCMJ Article 90 (Willful Disobedience of a Superior Commissioned Officer, three specifications) as determined by CO's NJP of 2 DEC 94; and violation of UCMJ Article 91 (Willful Disobedience of a Senior Chief Petty Officer) and violation of UCMJ Article 91 (Willful Disobedience of a Petty Officer) as determined by CO's NJP of 24 Mar 95; and by reason of Misconduct Due to Commission of Serious Offense as evidenced by violation of UCMJ Article 92 (Failure to Obey a Lawful Order), violation of UCMJ Article 121 (Larceny of Government Property) and violation of UCMJ Article 134 (Communicating a Threat) as determined by CO’s NJP of 14 Apr 94; violation of UCMJ Article 91 (Willful Disobedience of a Petty Officer) as determined by CO’s NJP of 18 Nov 94; violation of Article 90 (Willful Disobedience of a Superior Commissioned Officer, three specifications) as determined by CO's NJP of 2 Dec 94; and violation of UCMJ Article 91 (Willful Disobedience of a Senior Chief Petty Officer) and violation of UCMJ Article 91 (Willful Disobedience of a Petty Officer) as determined by CO's NJP of 24 Mar 95. Applicant informed the least favorable characterization of service possible is under other than honorable conditions.
950518:  Applicant advised of rights and having consulted with qualified counsel, elected to appear before an Administrative Discharge Board.
950710:  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, that the misconduct warranted separation, and recommended the Applicant’s general (under honorable conditions) discharge.

950731:  Commanding Officer recommended the Applicant’s general (under honorable conditions) by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.

950906:  BUPERS directed the 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 19950922 with a general (under honorable conditions) for misconduct due to a pattern of misconduct (A and 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).

 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 or 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 four nonjudicial punishment proceedings for violations of Articles 86, 90, 91, 92, 121 and 134 of the UCMJ. The Applicant was counseled fifteen times for deficiencies in addition to his retention warnings. The Applicant’s violations of Articles 90, 91, 92, 121 and 134 are considered 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 contends that he is “grown up now” and that at the time he was in the Navy, he was not responsible. While he may feel that his immaturity was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 Naval 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 sufficient post-service documentation for the Board to consider. Relief denied.

Regarding reenlistment: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. Reenlistment policy of the naval service is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

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 9, effective
22 Jul 94 until 02 Oct 96), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A PATTERN OF MISCONDUCT.

B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violations of the Uniform Code of Military Justice, Article 90 willfully disobeying a superior commissioned officer, Article 91 insubordinate conduct toward a petty officer, Article 92, failure to obey and order or regulation, Article 121, larceny and Article 134, communicating a threat, 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 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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