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NAVY | DRB | 2005_Navy | ND0501101
Original file (ND0501101.rtf) Auto-classification: Denied


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

ex-OS3, USN
Docket No. ND05-01101

Applicant’s Request
The application for discharge review was received on 20050620. 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 20060131. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, an impropriety in the characterization of the Applicant’s service and the narrative reason for separation was discovered by the NDRB. The Board’s vote was unanimous that the discharge and the reason for discharge shall change to: Honorable by reason of Non-Retention On Active Duty.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Applicant’s issues, as stated on the application:

“I got a DUI on 20 FEB 05. I only had 2 weeks left before my terminal leave would be available to me. I do not believe my years of honorable service should be negated because of my mistake. I could understand a period of restriction and forfeiture of wages, but to say that my 3 years 10½ months of service was anything less than honorable, is completely injust.”

 Documentation
Only the service and medical records were 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)     20010316 – 20010402      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20010403    Date of Discharge: 20050402

 Length of Service (years, months, days):

         Active: 04 00 00
         Inactive: None

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

 Age at Entry: 20

 Years Contracted: 4

Education Level: 12                        AFQT: 84

 Highest Rate: OS3

 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): National Defense Service Medal, Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal, Humanitarian Service Medal, Navy Unit Commendation, Navy Battle “E” Ribbon, Sea Service Deployment Ribbon (2 nd )
* Not Available


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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 1910-140.
Chronological Listing of Significant Service Events :

021101:  NJP for violation of UCMJ, Article 134: Disorderly conduct.
         Violation of UCMJ, Article 107: False official statement.
         Award: Forfeiture of $546 per month for 2 months (suspended forfeiture of pay for 1 month for 6 months), extra duty for 14 days. No indication of appeal in the record.

031105:  NJP for violation of UCMJ, Article 128: Assault consummated by a battery.
         Award: Forfeiture of $708 pay per month for 2 months, restriction and extra duty for 30 days, reduction to E-2 (reduction in pay grade suspended for 6 months). No indication of appeal in the record.

031106:  Retention Warning: Advised of deficiency (failed to adhere to the rules of the UCMJ as evidence by conviction at CO NJP for violation of UCMJ Article 128), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
050222:  NJP for violation of UCMJ, Article 111: Drunken or reckless operation of a vehicle.
         Award: Not available.
050224:  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.
050224:  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.
050224:  Commanding Officer, USS DUBUQUE (LPD 8), recommended to COMNAVPERSCOM, via Commander, Amphibious Group THREE, that Applicant be discharged under other than honorable conditions by reason of a pattern of misconduct. Commanding Officer’s comments: “OS3 B_ (Applicant) is a burden to the good order and discipline of this command. He has been to Captain’s Mast three times in 3 years and cannot be depended on. On 20 February 2005, OS3 B_ (Applicant) was stopped by Base police for drunken or reckless operation of a vehicle. He was awarded CO’s NJP for these charges on 24 February 2005. OS3 B_ (Applicant) continually ignores his Chain of Command and shows disregard for the safety of his fellow shipmates, leading to NJP for violation of UCMJ article 111. Through his demonstrated disrespect for rules and regulations, OS3 B_ (Applicant) has become disruptive and a significant safety burden to the command. He shows no desire to improve his behavior and no potential for future productive Naval Service. In accordance with MILPERSMAN 1910-140, I recommend OS3
B_ (Applicant) be separated from the United States navy by reason of Pattern of Misconduct. Further, I recommend that he be separated with characterization of service of “Other than Honorable.”

050224:  USS DUBUQUE Medical Department: Applicant physically qualified for separation.

050402:  DD Form 214: Applicant discharged under other than honorable conditions under the authority of MILPERSMAN 1910-140 [No narrative reason for discharge was listed on the DD Form 214].

050404:  COMNAVPERSCOM directed Applicant’s discharge as type warranted by service record by reason of non-retention on active duty. COMNAVPERSCOM acknowledged receipt of the administrative separation request and advised no further administrative separation action is contemplated because the Applicant’s EAOS had expired. COMNAVPERSCOM directed preparation of a Page 13 entry in member’s service record which states that he is not to be extended, reenlisted, or recalled to active duty without the express permission of COMNAVPERSCOM (PERS4832).

 051222:  DD Form 215 issued. Applicant’s Narrative Reason for Separation: Misconduct – Pattern of Misconduct. Applicant’s Separation Code: JGH.

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 20050402 by reason of misconduct due to pattern of misconduct (A) 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 characterization of service and narrative reason for separation was both improper and inequitable (B and C). The Board presumed regularity in the conduct of governmental affairs (D).

 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 pattern of misconduct. The record reveals that the Applicant was processed and notified for separation by reason of misconduct due to pattern of misconduct on 20050224 with a least favorable characterization of under other than honorable conditions. On the same day, the Applicant waived his right to appear before an administrative discharge board and the Commanding Officer, USS Dubuque (LPD 8), recommended to COMNAVPERSCOM, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct. The evidence of record reveals that the Applicant was separated on 20050402, the last day of his active obligated service. Blocks 26 and 28 of the DD Form 214 were left blank, however based on Blocks 24 and 25, it appears the Applicant was separated under other than honorable conditions by reason of misconduct due to a pattern of misconduct. On 20050404, COMNAVPERSOM directed the Applicant’s separation as type warranted by service record due to the Applicant’s expiration of his active obligated service. Based upon the above review, the Board unanimously concluded that the Applicant’s discharge was improper. The USS Dubuque (LPD 8) separated the Applicant without the requisite approval of the separation authority, COMNAVPERSCOM. As such the Board voted unanimously to change the Applicant’s Narrative Reason for Separation to “NON-RETENTION ON ACTIVE DUTY” as directed by NAVPERSCOM. Relief granted.

Regulations require that when a Sailor reaches the end of his obligated active service, the characterization of his discharge be based exclusively upon his final individual trait average from his Enlisted Evaluation Reports and Counseling Records. Regulations state that a Sailor’s characterization of service shall be honorable unless the Sailor’s final individual trait average on the aforementioned evaluation reports is 2.49 or below. In such an instance, the Sailor may be eligible for a general (under honorable conditions) discharge. In the Applicant’s case, his final individual trait average was 2.92 as evidenced by his evaluation reports. Based upon applicable regulations, the Applicant’s final individual trait average was sufficient to merit an honorable discharge. As such, the Board voted unanimously to change the Applicant’s characterization of service to Honorable . Relief granted.

The following is provided for the edification of the Applicant. The NDRB has no authority to provide additional relief in this case. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

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 .

 D. 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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