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NAVY | DRB | 2005_Navy | ND0501129
Original file (ND0501129.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-AA, USNR
Docket No. ND05-01129

Applicant’s Request
The application for discharge review was received on 20050629. The Applicant requests that his 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 20051206. 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 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:

“The Undesirable Discharge is improper because my full 3yr. term was served in full, Entry date July 1, 1997 separation date July 23, 2000. It clearly shows my term was served in full without having an Honorable Discharge. Being young I made mistakes I couldn’t correct at that time with alcohol. Now being a father I’m stepping forward with a good example.”
Documentation
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: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19970701             Date of Discharge: 20000723

 Length of Service (years, months, days):

         Active: 03 00 23 (Does not exclude lost time.)
         Inactive: 00 00 10

 Time Lost During This Period (days):
         Unauthorized absence: 23 days
         Confinement:              3 days

 Age at Entry: 17 (Parental Consent)

 Years Contracted: 8 (3 year active duty reserve contract)

 Education Level: 12                                 AFQT: unreadable

 Highest Rate: ABE3

 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, Armed Forces Expeditionary Medal, Meritorious Unit Commendation (2ND)
* Not Available


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 :

970701:  Commenced active duty for a period of 36 months.
980426:  Applicant to unauthorized absence at 0700 on 26 April 1998.

 980428:  Applicant from unauthorized absence at 0700 on 28 April 1998 (2 days/surrendered).

991013:  NJP for violation of UCMJ, Article 134 (2 specs):
 Specification 1: Drunk and disorderly.
Specification 2: Resisting arrest.
          Award: Restriction and extra duty for 30 days, reduction to E-2 (suspended for 3 months).

991215:  Applicant to unauthorized absence at 0700 on 15 December 1999.

 991216:  Applicant from unauthorized absence at 0700 on 16 December 1999 (1 day/surrendered).

000308:  Applicant to unauthorized absence at 0700 on 08 March 2000.

 000328:  Applicant from unauthorized absence at 0700 on 28 March 2000 (20 days/surrendered).

000515:  Applicant charged with violation of UCMJ Article 134 (underage drinking and drunk and disorderly) and Article 91 (disrespect toward a Chief Petty Officer).

 000527:  NJP for violations of UCMJ, Article 86 (2 specs), Article 91, and Article 134 (2 specs):
 Violation of UCMJ Article 86 (2 specs):
Specification 1: 25 May 2000, place of duty.
Specification 2: 08 March 2000, absent from unit until 28 March 2000.
Violation of UCMJ, Article 91: 15 May 2000, disrespectful in language towards the Officer of the Deck, Naval Station North Island, a Chief Petty Officer, who was then in the execution of his office, by being belligerent with him.
Violation of UCMJ, Article 134 (2 specs):
Specification 1: 15 May 2000, drunk and disorderly conduct, which was of a nature to bring, discredit upon the armed forces.
Specification 2: 15 May 2000, consume alcohol while under the age of 21 years.
         Award: Forfeiture of $563 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
000528:  Applicant charged with unauthorized absence from restricted muster at 0630 and 1100 on 28 May 2000.

000602:  Applicant charged with unauthorized absence from restricted muster at 1800 on 02 June 2000.

000611:  NJP for violation of UCMJ, Article 86 (3 specs):
         Specification 1: 28 May 2000, place of duty.
         Specification 2: 02 June 2000, place of duty.
         Specification 3: 28 May 2000, place of duty.
         Award: Confinement on bread and water for 3 days. No indication of appeal in the record.
000618:  Applicant notified of the intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of Misconduct - pattern of misconduct and commission of a serious offense.
000618:  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.
000622:  Commanding Officer, USS ABRAHAM LINCOLN (CVN 72), notified Chief of Naval Personnel that he had authorized the discharge of AA B_ (Applicant) with a general (under honorable conditions) by reason of misconduct - pattern of misconduct and misconduct - commission of serious offense. Commanding Officer’s comments: “AA B_ (Applicant) is incapable of adhering to the rules and regulations of this command and the U.S. Navy and is simply unwilling to conduct himself in a manner conducive to good order and discipline. I authorize that AA B_ (Applicant) be separated from the naval service by reason of misconduct due to a pattern of misconduct, commission of a serious offense, and that his characterization of service be General (Under Honorable Conditions).”

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 20000723 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 all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

When the service of a member of the U.S. Navy has met the standard of acceptable conduct and performance, it is appropriate to characterize that service as honorable. A general (under honorable conditions) discharge is warranted when significant negative aspects of a member's conduct or performance outweigh the positive aspects of the member's military record. T he Applicant’s service was marred by three nonjudicial punishments (NJP) for violations of UCMJ Article 86 (unauthorized absence, 5 specifications), Article 91 (disrespect toward superior noncommissioned petty officer) and Article 134 (drunk and disorderly; 2 specifications, resisting arrest, and underage drinking). A v iolation of Article 91 constitutes the commission of a serious offense, as defined by reference (A), the misconduct for which the Applicant was discharged. There is credible evidence in the record that the Applicant committed a serious offense. 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 characterization of service of less than honorable conditions. Relief denied.

The Applicant states that he had completed his full three-year active duty service obligation prior to being discharged for misconduct. The Applicant bears the burden of presenting substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced evidence, to support his contention that he completed his contract prior to being discharged. The record documents 23 days of unauthorized absence and three days of bread and water. These days are considered “lost time” as such they do not count as days of duty served toward the completion of a Sailor’s contract. The Board found the Applicant was properly processed for administrative separation based on misconduct and was separated from service three days prior to the end of his active duty contract. The NDRB found no impropriety in the Applicant's service characterization based upon this issue. Relief denied.

The Applicant contends that he was not responsible for his behavior because of his youth and immaturity. The facts are that the applicant entered the service with parental consent three months short of his 18 th birthday. Many Sailors join the U. S. Navy with parental consent prior to his or her 18 th birthday, as the Applicant did. Most go on to serve their country with honor and integrity thus earning an honorable discharge. In fact, the NDRB sees no connection between the Applicant’s misconduct and his alleged youth and immaturity. The record clearly reflects his willful misconduct, demonstrating 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. The NDRB found that the Applicant's service was equitably characterized. 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 provided no post service documentation for the Board’s consideration. Relief 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), 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 91 (insubordinate conduct).

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 .

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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