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NAVY | DRB | 2005_Navy | ND0501060
Original file (ND0501060.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-EN3, USN
Docket No. ND05-01060

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 and the Narrative Reason for Separation be changed to “Convenience of the government”. 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 20051102. 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 General (Under 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:

“An upgrade to Honorable.
A change in reason for discharge to “Convenience of the government”
A reenlistment code change to RE-1 and corresponding separation program number/designator
My discharge was inequitable because it was based on one (1) isolated incident in 4 years, 1 month, and 24 days of service with no other adverse action.
I would also like all issues addressed and the information and/or determination received, in writing, concerning these issues listed.
I would like an Honorable Discharge certificate, if applicable; once board action completed and applied to DD Form 214.”

 Applicant’s Remarks: (Taken from the DD Form 293.)

“I have been a good citizen since discharge.
Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge.
My record of promotions showed I was generally a good service member.
I received awards, decorations, and letters of appreciation/recommendation.
My ability to serve was impaired by my youth, immaturity, and level of education.
I was unaware that my discharge was available to upgrade.
I would just like to state that the given discharge was unfair and would not happen today.
I firmly believe that an honorable discharge upgrade would be fair and proper.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Six pages from Applicant’s service record
Letter from Florida Community College, dtd August 28, 2003
Phi Theta Kappa Certificate, dtd September 15, 2003
Certificate of Appreciation from Commander, Carrier Group Six, dtd October 10, 2003
Associate in Arts degree from Florida Community College, dtd April 30, 2004
Letter from Florida Community College, dtd February 25, 2005
Curriculum, printed May 25, 2005
Florida Community College at Jacksonville, student schedule for summer term 2004-2005
Florida Community College at Jacksonville, unofficial transcript, printed May 28, 2005 (5 pages)
E-mail from Medical Officer Programs, dtd January 12, 2005
University of North Florida (UNF) RN-BSN full-time track, printed May 28, 2005
University of North Florida unofficial transcript
Nurse anesthetist description
Anesthesiologist description

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19950725 - 19960707      COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19960708             Date of Discharge: 20000831

 Length of Service (years, months, days):

         Active: 04 01 24
         Inactive: None

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

 Age at Entry: 17 (Parental Consent)

 Years Contracted: 4 (3 month extension)*

 Education Level: 12                                 AFQT: 53

 Highest Rate: EN3

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 2.00 (4)    Behavior: 2.50 (4)       OTA: 2. 40
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Battle ‘E’, Armed Forces Service Medal, Armed Forces Expeditionary Medal, Sea Service Deployment (2), Good Conduct Medal
*Extension of service extracted from DD 214, Block 18 and Commanding Officer’s letter dated September 29, 2000.


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

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

000817:  NJP for Charge I: violation of UCMJ, Article 86 – Absence without leave.
         Specification 1: In that Engineman Third Class M_ J_ B_ (Applicant), on active duty did on or about 1800, 11 August, 2000, without authority, absent herself from her unit, to wit: USS O’Bannon (DD 987), and did remain so absent until on or about 2000, 11 August 2000, a period of two hours.
 Charge II: Violation of UCMJ, Article 89 - Disrespect toward a superior commissioned officer.
Specification: In that Engineman Third Class M_ J_ B_ (Applicant), on active duty did, on board USS O’Bannon (DD 987), on or about the afternoon of 08 August 2000, behave herself with disrespect toward LT Z_, her superior commissioned officer, then known by the said EN3 M_ J_ B_ (Applicant) to be her superior commissioned officer by saying to her “that the AuxO is a damn fucking bitch and is her problem that my damn ass had goddamned pissed her off” or words to that effect.
Charge III: Violation of UCMJ, Article 92 – Failure to obey order or regulation.
Specification: In that Engineman Third Class M_ J_ B_ (Applicant), did on board USS O’Bannon (DD 987), on or about 1800, 11 August 2000, fail to obey a lawful general order, to wit: to return on board for EMI as assigned by ENCS F_.
Additional charge as result of XOI
Charge I:
Specification II: In that Engineman Third Class M_ J_ B_ (Applicant), on active duty did on or about 1230, 16 August 2000, without authority, absent himself from her unit, to wit, USS O’Bannon (DD 987), and did remain so absent until on or about 1330, 16 August 2000, a period of one hour.
         Award: Forfeiture of ½ month’s pay per month for 1 month, restriction and extra duty for 45 days, reduction to E-3. Reduction suspended. No indication of appeal in the record.

000825:  Applicant notified of intended recommendation for discharge with the by reason of misconduct due to the commission of a serious offense. Applicant notified that the least favorable characterization of service possible is general (under honorable conditions).
000827:  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.
000929:  Commanding Officer, USS O’BANNON (DD 987) directed discharge with a general (under honorable conditions) by reason of misconduct-commission of a serious offense. Commanding Officer’s comments: “EN3 B_ (Applicant)’s nonchalant attitude toward her work has resulted in substandard performance onboard USS O’BANNON. She is hard to motivate and takes little to no initiative. EN3 B_ (Applicant) creates discontent within her workcenter with her poor attitude and disrespect to her supervisors. EN3 B_ (Applicant) has earned a General Discharge.”

001011:  CNP directed USS OBANNON to issue DD 215 to reflect correct SPD code of JKQ.

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 20000831 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of general (under 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).

 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 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 nonjudicial punishment proceedings for violations of UCMJ Articles 86 and 89. Additionally, the Applicant’s evaluation report indicated that she was unreliable, creates conflicts, and puts herself above others. The evaluation further indicated that she was a burden to her division and that she failed to improve despite numerous counseling sessions. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her 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 her characterization of service. Relief is not warranted.

The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a serious offense, that separation was appropriate, and that a general (under honorable conditions) discharge was warranted. As such, relief is denied.

The Applicant contends her discharge was inequitable because of her youth and immaturity at the time of service. The NDRB recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted most servicemembers begin their service at a relatively young age. It must further be noted that despite their relative youth and immaturity, the vast majority of these members of the Navy still serve honorably and therefore earn their honorable discharges. In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. Relief denied.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted. The Applicant was awarded nonjudicial punishment for a violation of UMCJ Article 89, disrespect toward a superior commissioned officer. Under applicable regulations, a violation of UCMJ Article 89 is considered a serious offense. The Applicant was properly notified, processed, and separated for misconduct due to the commission of a serious offense. The Applicant's DD Form 214, Block 28, Narrative Reason for Separation, indicates she was separated for Misconduct. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. To change the Narrative Reason for Separation would be inappropriate. 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 could 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 Board received and considered all of the Applicant’s submissions, including her educational achievements and service record documents. After careful consideration, the Board concluded the Applicant’s post-service achievements have been insufficient to mitigate her misconduct while in the Naval service. Relief denied.

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. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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 any additional documentation to support any claims of post-service accomplishments or any other evidence related to her 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), 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 89, disrespect toward a superior commissioned officer.

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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