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NAVY | DRB | 2005_Navy | ND0501025
Original file (ND0501025.rtf) Auto-classification: Denied


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

ex-SHSR, USN
Docket No. ND05-01025

Applicant’s Request
The application for discharge review was received on 20050602. The Applicant requests that his 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 20051027. After a thorough review of all 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 characterization 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 application:

“I’m trying to get a Job with Continental Airlines. I’ve already completed 50% of my training, and in order to continue I will need my Discharge up-graded. I really need this job to support my kids, I’ll be working at Midway Airport in Chicago”.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Continental Airlines, D_ M_, Training Coordinator, Chicago/Midway Airport, dtd May 24, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20020228 - 20020521      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20020522             Date of Discharge: 20040810

 Length of Service (years, months, days):

         Active: 02 02 19                  (Does not exclude lost time)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 3 days
         Confinement:              None

 Age at Entry: 19

Years Contracted: 4 (12 month extension)

 Education Level: 12                                 AFQT: 40

 Highest Rate: SHSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.0 (1)              Behavior: 3.0 (1)                          OTA : 3.17

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


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 :

031208:  Unauthorized absence from 0000, 08 December 2003, while on duty.

 031208:  Returned from unauthorized absence at 0504, 08 December 2003 (5 hours).

031223:  Unauthorized absence from 0800, 23 December 2003.

031227:  Returned from unauthorized absence at 0730, 27 December 2003 (3 days).

040210:  NJP for violation of UCMJ, Article 86 (unauthorized absence, 2 Specs)
         Specification 1: Unauthorized absence from 0000, 08 December 2003 until 0504, 8 December 2003.
         Specification 2: Unauthorized absence from 0800, 23 December 2003 until 0730, 27 December 2003.
Violation of UCMJ, Article 92 (failure to obey a lawful order)
Specification: Leaving the ship while in a duty status without proper authority.
         Award: Restriction and extra duty for 15 days. No indication of appeal in the record.
        
040210:  Retention Warning: Advised of deficiencies (unauthorized absence and failure to obey a lawful order), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
040414:  Unauthorized absence at 0915, 14 April 2004, absent from man overboard drill.
040414:  Returned from unauthorized absence at 1050, 14 April 2004 (1 hour, 35 minutes).
040427:  NJP for violation of UCMJ, Article 86 (unauthorized absence) and Article 92 (dereliction of duty, failed to go to man overboard drill).
 Award: Restriction and extra duty for 20 days, reduction to E-2. Suspended for six months. No indication of appeal in the record.

 040427:  Retention Warning: Advised of deficiency (unauthorized absence and dereliction of duty), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
040610:  Suspended punishment awarded at NJP on 27 April 2004, vacated due to continued misconduct.
040610:  NJP for violation of UCMJ, Article 80 (attempted to break restriction) and violation of UCMJ, Article 86 (unauthorized absence).
 Award: Restriction and extra duty for 40 days, reduction to E-1. No indication of appeal in the record.
040709:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.
040709:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
040716:  Commanding Officer, USS BELLEAU WOOD (LHA 3), recommended to Commander, Amphibious Group Three, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense. Commanding Officer’s comments: “Despite counseling and warnings, SHSR T_ (Applicant) continues to commit misconduct as noted above. He is unwilling to adhere to the rules and regulations of this command and the U. S. Navy. I recommend that SHSR T_ (Applicant) be separated from the naval service by reason of misconduct due to a pattern of misconduct and misconduct due to a commission of a serious offense. I recommend his characterization of service be other than honorable.”

040722:  COMPHIBRU THREE, directed that the Applicant be discharged under other than 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 20040810 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 all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).

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 under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct outweigh the positive aspects of the member's military record. The Applicant’s service was marred by three nonjudicial punishment proceedings for violations of UCMJ Article 86 (unauthorized absence, 4 specifications), Article 92 (failure to obey/dereliction of duty, 2 specifications), and Article 80 (attempted restriction break). Each violation of Article 92 is considered the commission of a serious offense, as such is punishable by a punitive discharge if convicted by courts-martial. A pattern of misconduct, the reason for the Applicant’s discharge, is defined as two or more nonjudicial punishments during a single enlistment. There is credible evidence in the record that the Applicant was guilty of multiple infractions of the UCMJ. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Separation under these conditions generally results in a service characterization of under other than honorable conditions. Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization based solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing medical, employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. This issue is without merit, relief denied.

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. The Applicant did not submit post service documentation for the board’s consideration.

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 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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