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NAVY | DRB | 2005_Navy | ND0501047
Original file (ND0501047.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-CM2, USN
Docket No. ND05-01047

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 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 20060317. 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 commission of a serious offense .
PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“At the time of the separation, I was going through medical boards for discharge and also being a new father. I had orders to VSW-MCM and they were cancelled for medical reasons. After going through this for almost a year, I was told that I was released for full duty, without any help for my knee and told that I was leaving for a NMCB ASAP. I made a bad decision, and the result was a OTH discharge. I believe that after 13 years of being a highly decorated sailor, I deserve another chance at a general discharge. I ask that a review of my file be conducted and I believe that it will clearly show that I was an above average sailor. I served in the Gulf war, (FH-5) and was awarded the Navy Achievement Medal for my actions there, I was even selected to serve at NSWDG Dam Neck. I have in the past made bad and misguided decisions in life but believe that everyone is not perfect. I made a bad decision, I can only ask that my discharge be changed t reflect my career and not one (1) bad decision. Thank you.”

 Documentation
Only the service record was 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)                19850712 – 19860630               COG
         Active:          USN                        19860701 – 19890605              HON
         Active:           USN                        19890606 – 19960214               HON

 Period of Service Under Review :
Date of Enlistment: 19960215             Date of Discharge: 20000428

 Length of Service (years, months, days):

         Active: 04 02 13
         Inactive: None

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

 Age at Entry: 27

 Years Contracted: 6

 Education Level: 12                                 AFQT: 36

 Highest Rate: CM1

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (5)             Behavior: 3.67 (5)                OTA: 3 .69

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): USCG Meritorious Unit Commendation with “O” device, Navy “E” Ribbon, Sea Service Deployment Ribbon (3), National Defense Service Medal, Southwest Asia Service Medal with 2 Bronze Stars, Expert Rifleman Medal, Navy Unit Commendation, Kuwait Liberation Medal, Expert Pistol Shot Medal, Joint Service Achievement Medal, Armed Forces Expeditionary Medal, Joint Meritorious Unit Award, United Nation Medal, Navy and Marine Corps Achievement Medal (3), Third Good Conduct Medal.


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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 1910-142 (formerly 3630605).
Chronological Listing of Significant Service Events :

960215:  Reenlisted this date for a term of 6 years.
000411:  NJP for violation of UCMJ, Article 86: Absence without leave.
 Violation of UCMJ, Article 92: Failure to obey order or regulation.
Violation of UCMJ, Article 107: False official Statement.
Violation of UCMJ, Article 134: False pretenses, obtaining services under.
         Award: Forfeiture of $949.00 pay per month for 2 months, restriction to NAS JRB Willow Grove, PA for 60 days, reduction to E-5. No indication of appeal in the record.
000428:  DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to commission of a serious offense, MILPERSMAN 1910-142 GCMCA LTR of 27APR2000.

Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20000428 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of under other than honorable conditions. After a thorough review of the available 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).

 By regulation, a discharge shall be deemed proper, unless it is determined that an error of fact, law, procedure, or discretion has substantially prejudiced the rights of the Applicant. The Applicant was discharged under other than honorable conditions by reason of misconduct due to the commission of a serious offense. A review of the Applicant’s service record convinced the Board that a preponderance of evidence exists to support the Applicant’s basis for separation by virtue of his NJP on 20000411 for violation of UCMJ Article 86, unauthorized absence, Article 92, failure to obey order or regulation, Article 107, false official statement, or Article 134, obtaining service under false pretenses. In the absence of a complete discharge package, the Board presumed the Applicant was properly processed and notified of separation by reason of misconduct due to the commission of a serious offense. The Board further presumed the Applicant waived his procedural rights and was discharged accordingly. Based upon the above review, the Board unanimously concluded that the Applicant’s discharge processing was in substantial compliance with applicable statutes, rules, and regulations. Despite the Applicant’s contentions, the Board could find no error of fact, law, procedure, or discretion that might afford the Applicant relief. Relief is not warranted.

Regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment. Furthermore, there are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis of characterization for a Sailor’s overall service. The incident need not result in formal punishment to be properly used to characterize a Sailor’s service. When the service of a member of the U.S. Navy has met the standard for acceptable conduct and performance, it is appropriate to characterize that service as honorable. An under other than honorable conditions discharge is warranted when a member's conduct involves one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. T he Applicant’s service was marred by nonjudicial punishment proceedings for violations of UCMJ Articles 86, 92, 107, and 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.

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 28, effective
30 Mar 00 until 29 Aug 00, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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 86, unauthorized absence in excess of 30 days, Article 92, failure to obey order or regulation, Article 107, false official statement, or Article 134, obtaining services under false pretenses.

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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