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


FOR OFFICIAL USE ONLY


ex-EMFR, USN
Docket No. ND05-01046

Applicant’s Request

The application for discharge review was received on 20050606. 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051020. 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 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 .

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

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

“I would like to have my records from my admin sep present we had to record it on tape.

Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge.

Under current standards, I would not receive the type of discharge I did.

My average conduct and efficiency ratings/behavior and proficiency marks were good [or pretty good].

I received awards and decorations.

I had combat service.

I was wounded in action.

My record of promotions showed I was generally a good service member.

I was so close to finishing my tour that it was unfair to give me a bad discharge.

I have been a good citizen since discharge.

My record of NJPs/Article 15s indicates only isolated or minor offenses.

My ability to serve was impaired by my youth and immaturity.

My ability to serve was impaired by my deprived background.

My ability to service was impaired because of marital and family and child care problems.

Personal problems impaired my ability to serve.

Financial problems impaired my ability to serve.”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Letter from Applicant, undtd (3 pages)
King David’s Prayer
Picture of children
Two receipts for money orders
Applicant’s pay check stub, dtd May 13, 2005

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PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Inactive: USNR (DEP)     20010830 - 20011029      COG
         Active: None

Period of Service Under Review :

Date of Enlistment: 20011030             Date of Discharge: 20040416

Length of Service (years, months, days):

         Active: 02 05 04
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: 13 days
         Confinement:              None

Age at Entry: 19

Years Contracted: 4

Education Level: 9                                  AFQT: 50

Highest Rate: EMFA

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): Sea Service Deployment Ribbon (2), National Defense Service Ribbon (1)

*Not Available

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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 :

010830:  Pre-service waiver for HP3 qualification granted.

030205:  NJP for violation of UCMJ, Article 92:
         Specification: Disobeying a lawful order.
Violation of UCMJ, Article 86:
Specification: Unauthorized absence.
         Award: Restriction and extra duty for 21 days, reduction to E-1. Reduction suspended for 6 months. No indication of appeal in the record.

030206:  Retention Warning: Advised of deficiency (Commanding Officer’s NJP of 05 February 2003 for violation of UCMJ Article 92: Disobeying a lawful order/dereliction of duty; violation of UCMJ Article 86: Unauthorized absence (3 specifications), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030219:  Reduction in rate awarded and suspended at NJP on 030205 vacated due to continued misconduct.

030219:  Applicant to unauthorized absence at 0630 on 030219.

030304:  Applicant from unauthorized absence at 0700 on 030304 (13 days/surrendered).

030313:  NJP for violations of UCMJ:
Article 86:
         Specification: Unauthorized absence.
Article 134:
Specification: Breaking restriction.
         Award: Forfeiture of $575 per month for 2 months, extra duty for 30 days. No indication of appeal in the record.

030325:  Retention Warning: Advised of deficiency (Failed to participate in the Command directed PRT), notified of corrective actions and assistance available, advised of consequences of further deficiencies.

030416:  NJP for violation of UCMJ:
Article 92: Disobeying a lawful order.
         Specification: In that EMFR D_, W_ S. (Applicant), USN on active duty, attached on USS CARTER HALL, having knowledge of a lawful order issued by Secretary of the Navy, to wit: SECNAVINST 5300.26C, dated 17 October 1997, an order which it was his duty to obey, did on board USS CARTER HALL, on or about 15 April 2003, fail to obey the same by wrongful smacking QMSN J_, R_, USN, USS CARTER HALL on the butt and saying sexual comments. Also CARTERHALLINST 5300.1 dated 12 Dec 96.
         Award: Forfeiture of $200 per month for 1 month, restriction and extra duty for 30 days. No indication of appeal in the record.

0307XX:  Applicant stood an Administrative Separation Board. Recommendation: Retention. [Extracted from CO’s Recommendation for Administrative Separation Letter dated 040318.]

040315:  Applicant stood Disciplinary Review Board. Recommendation of Board: NJP Applicant for violations of UCMJ Articles 86, 89 and 134 and process for administrative separation.

040316:  NJP for violations of UCMJ.
Article 86: Failure to go to Appointed Place of Duty.
         Specification: In that EMFR D_, W_ S. (Applicant), USN, on active duty, attached to USS CARTER HALL, did on or about 02 March 2004, without authority, fail to go at the time prescribed, 0700, to his appointed place of duty, to wit: EM Shop.
Article 89: Disrespect toward a Superior Commissioned Officer.
Specification: In that EMFR D_, W_ S. (Applicant), USN, on active duty, attached to USS CARTER HALL, did on board USS CARTER HALL, on or about 0730, 02 March 2004, behave himself with disrespect toward LTJG G_, his superior commissioned officer, then known by EMFR D_ (Applicant) to be his superior commissioned officer, by saying to him, this is some f_ing bullshit, or words to that effect.
Article 134: Disrespect toward a Sentinel
Specification: In that EMFR D_, W_ S. (Applicant), did, on board USS Carter Hall, on or about 02 March 2004, then knowing that BMSN H_ was a sentinel (vehicle access watch), wrongfully behave in a disrespectful manner toward BMSN H_, by using the vehicle access ramp in the drydock after BMSN H_ specifically ordered him to use the main brow.
         Award: Restriction and extra duty for 45 days. No indication of appeal in the record.

040316:  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.

040317:  Applicant advised of rights and having elected not to consult with counsel with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

040318:  Commanding Officer, USS CARTER HALL (LSD 50) recommended Applicant’s under other than honorable conditions discharge by reason of misconduct due to a pattern of misconduct. Commanding Officer’s comments: “EMFR D_ (Applicant)’s performance since reporting aboard has been substandard, disruptive, and contrary to good order and discipline. He sat before an administrative separation board in July 2003. The admin board attributed his problems to not adapting well to the military way of life and family issues, both areas in which the command has gone above and beyond any reasonable standard to assist FR D_ (Applicant). It was the admin board’s decision that he had turned himself around, established his priorities and efforts to coincide with the needs of the Navy, that he had potential for further service and should therefore be retained. Although the previous Commanding Officer personally did not agree with their assessment of FR D_ (Applicant), he supported their recommendation for retention and provided him one final chance to prove he could succeed as a member of the naval service. Since the board, his behavior has continued to degrade, further causing his division to suffer. He continues to be a hindrance to one of the largest, and most undermanned divisions on board. He detracts from the time and efforts electrical division could be spending on tasks they need to be accomplishing by filling their time with counseling sessions and constant supervision of EMFR D_ (Applicant). He was given his second chance, now I feel it is necessary to separate him from the Navy. After his NJP on 16 March 2004 he was given his Administrative Separation Processing Notice, and he waived his right to a board. I recommend an under Other Than Honorable separation due to the nature of his service.”

040408:  Commander, Amphibious Group TWO directed the Applicant's under other than honorable conditions discharge by reason of misconduct due to a pattern of misconduct.


Service Record was missing elements of the Summary of Service.

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040416 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 contends that under current standards, he would not receive an under other than honorable conditions discharge. 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. The Applicant’s service was marred by two retention warnings and four nonjudicial punishment proceedings for violations of Articles 86, 89, 92 and 134 of the UCMJ. Violations of Articles 89 and 92 are considered serious offenses. The Applicant spent 13 days in unauthorized absence. 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 it is an injustice for the Applicant to continue to suffer the adverse consequences of his discharge. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits or enhancing employment or educational opportunities. These types of issues does not serve to provide a foundation upon which the Board can grant relief. Relief is not warranted.

The Applicant contends that he received awards and decorations, had combat service, was wounded in action and that his proficiency and behavior marks were good. The record shows the Applicant was awarded two Sea Service Deployment Ribbons and that he received the National Defense Service Medal. The Applicant’s proficiency and conduct marks were not available for the Board to review. While the Board did presume the Applicant had “combat service” by virtue of being assigned to the USS Carter Hall during his enlistment, there is no evidence in the record, nor did the Applicant provide any documentation to support the contention that the Applicant was “wounded in action.” With respect to these issues, the Board found that despite the servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline and therefore found the Applicant’s discharge proper and equitable. Relief denied.

The Applicant contends that his record of promotions showed he was a good service member and that his record of NJPs indicate only isolated or minor offenses. The Applicant was discharged as an EMFR. Though the Applicant did obtain the EMFA rating, he was reduced in rank after his award at NJP on 20030205 was vacated on 20030219 due to his continued misconduct. The Applicant’s record of promotions does not show the Applicant was good service member. Further, the Applicant’s four NJPs, to include the adjudication of serious offenses, show the Applicant’s offenses were neither isolated nor minor. Relief on this basis is not warranted. Relief denied.

The Applicant contends that he was so close to finishing his tour that it was unfair to give him a bad discharge. The Applicant served two years and five months of a four year enlistment. Members of the Navy are required to adhere to the regulations of the Uniform Code of Military Justice throughout their enlistment. The Applicant was issued two retention warnings, as a result of his misconduct, that informed the Applicant that any future violations of the UCMJ would make him eligible for administrative separation. Relief on this basis is not warranted.

The Applicant contends that his ability to serve was impaired by his youth, deprived background and problems related to family, child care, marital, personal and financial issues. While the Applicant may feel that these many issues were 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.

The Applicant contends that he has been a good citizen since discharge. 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, credible evidence of a substance free lifestyle 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.

The Applicant requested that the “records from his admin sep [board be] present we had to record it on tape.” The record shows the Applicant was subject to an administrative separation board in July 2003. Further, the record shows that the board recommended the Applicant’s retention. The documentation of this Board is limited to the information extracted from the Commanding Officer’s recommendation for separation letter dated 20040318. Therefore the audio tape of these proceedings was not available to the NDRB for review. The Board did note, however, that the Applicant stood a Disciplinary Review Board on July 20040315, which recommended separation. The Applicant subsequently waived his right to a second administrative separation board on 20040317. The Applicant was then processed for separation without a administrative board. 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. 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 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 89, disrespect to a superior commissioned officer and Article 92, failure to obey an order/regulation.

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 .

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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