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NAVY | DRB | 2005_Navy | ND0501170
Original file (ND0501170.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND05-01170

Applicant’s Request
The application for discharge review was received on 20050711. 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 designated Civilian Counsel as the representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060216. 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 a pattern of misconduct.
PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“I again contend I was never brought up on criminal charges, that the discharge of Other Than Honorable is too harsh. I did not have any problems until I went USS Mount Hood AE29. I believe I was given this discharge for speaking out about the poor leadership and moral problems within the command. I do owe I was late for formation. This discharge is affecting my ability to find gainful employment.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR   19950106 – 19950711      ELS (Failed to GRAD)
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19950713             Date of Discharge: 19980714

 Length of Service (years, months, days):

         Active: 03 00 01 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence:    1 day
         Confinement:                       None

 Age at Entry: 19

Years Contracted: 4 (24 month extension)

 Education Level: 12 (GED)                                   AFQT: 77

 Highest Rate: SN

 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, Battle “E”, Sea Service Deployment Ribbon.
* Not Available


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 :

960321:  Consultation Sheet: 19 y/o WM with no history of physical abuse who is being investigated for vandalism/fire onboard ship. Command request psych testing to rule out personality disorder.
960405:  Chronological Record of Medical Care: Applicant referred by command for “insomnia” and “anti-social behavior”.
         Diagnosis:       Axis I: No diagnosis
                           Axis II: No diagnosis
         Impression: Appears case has been mishandled and command hasn’t spent any time to understand PT or find out what’s going on with him.
         Recommendation:  1) PT is fit for full duty
                                    2) PT is not homicidal and not a risk
                                    3) No followup or further appts needed.
960816:  NJP for violation of UCMJ, Article 86: In that SA R_ M_ M_ F_ (Applicant), U.S. Navy, USS MOUNT HOOD, on active duty, did, on board USS MOUNT HOOD, located at NAS Alameda, California, at or about 0400, 960806, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: the 0400 Food Service Attendant muster on the Mess Deck.
         Award: Forfeiture of $100.00 pay per month for 1 month, restriction and extra duty for 15 days and reduction to E-1 (suspended for 6 months). No indication of appeal in the record.

960819:  Retention Warning: Advised of deficiency (Violation of UCMJ Article 86, failure to go to appointed place of duty as evidenced by Commanding Officer’s NJP on 960816.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
970509:  NJP, Charge I: violation of UCMJ, Article 92: In that Seaman Apprentice R_ M. F_ (Applicant), U.S. Navy, USS MOUNT HOOD, on active duty having knowledge of a lawful order issued by the Commander of the Constellation Battle Group to wit: paragraph 8d, GENADMIN message dated 970407, an order it was his duty to obey, did, on board, USS MOUNT HOOD, at Fremantle, Australia, on or about 970505, failed to obey the same by returning to the ship at 0930, 970505.
         Charge II: violation of UCMJ, Article 86: In that Seaman Apprentice R_ M. F_ (Applicant), U.S. Navy, USS MOUNT HOOD, on active duty, did, on or about 970504, without authority, absent himself, from his unit, to wit: USS MOUNT HOOD, located at Fremantle, Australia, and did remain so absent until on or more about 0930 970505.
         Award: Restriction to MOUNT HOOD for 7 days, extra duties for 35 days. No indication of appeal in the record.

Undated:         Retention Warning: Advised of deficiency (CO’s NJP held on 970614, violation of UCMJ Article 86, failure to go to appointed place of duty.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

970614:  NJP for violation of UCMJ, Article 86: (2 specs).
Spec 1: In that SA R_ M. F_ (Applicant), U.S. Navy, USS MOUNT HOOD, on active duty, located at sea, did, on board USS MOUNT HOOD (AE-29), at or about 0830, 970608, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: “Quarter”, USS MOUNT HOOD (AE-29).
Spec 2: In that SA R_ M. F_ (Applicant), U.S. Navy, USS MOUNT HOOD, on active duty, located at Jebel Ali, did, on board USS MOUNT HOOD (AE-29), at or about 1900, 9700511, 970603, 970606, without authority, fail to go at the time prescribed to his appointed place of duty, to wit “Extra Duty Muster”, USS MOUNT HOOD (AE-29).
          Award: Forfeiture of $300.00 pay per month for 2 months, restriction for 16 days, and extra duty for 30 days (suspended for 6 months), reduction to E-1 (suspended for 3 months). No indication of appeal in the record.
970625:  Forfeiture of pay and reduction in pay grade awarded at NJP on 970614 vacated due to continued misconduct.

970625:  NJP for violation of UCMJ, Article 86: In that SA R_ M. F_ (Applicant), U.S. Navy, USS MOUNT HOOD, on active duty, located at sea, did, on board USS MOUNT HOOD (AE-29), at or about 1630, 970615; 2130, 970618; and 0645, 970619, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Restricted Muster.
         Award: Forfeiture of $200.00 pay per month for 2 months, restriction and extra duty for 30 days. No indication of appeal in the record.

980420:  NJP for violation of UCMJ, Article 86: In that SA R_ F_ (Applicant), U.S. Navy, USS MOUNT HOOD, on active duty, did, on or about 0630, 980410, without authority, absent himself from his unit, to wit: USS MOUNT HOOD, located at pier side FISC Oakland, California, and did remain so absent until on or about 0900, 980411 (27 ½ hour period).
 Award: Oral reprimand, extra duty for 45 days. No indication of appeal in the record.
980626:  NJP for violation of UCMJ, Article 86: Absence without leave.
         Award: Restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.

980629:  Applicant notified of intended recommendation for discharge by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct. Applicant notified that the least favorable characterization of service possible is under other than honorable conditions.

980629:  Applicant advised of rights and having elected not to consult with counsel elected to waive all rights.
980707:  Commanding Officer, USS MOUNT HOOD (AE-29), recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct. Commanding Officer’s comments: “SR F_ (Applicant) is being separated from the naval service for misconduct due to commission of a serious offense, and misconduct due to a pattern of misconduct. Member has no further potential for naval service. Member waived his administrative board rights, recommend Other Than Honorable discharge.”

980728:  Commander, Naval Surface Group Pacific Northwest directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19980714 by reason of misconduct due to a 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 discharge was proper and equitable (B and C).

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 six nonjudicial punishment proceedings for violations of UCMJ Articles 86, and 92, and two NAVPERS 1070/613 retention warnings during his three years of active service. 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 implies that he was discharged in retaliation for speaking out against command leadership and moral problems. There is a presumption of regularity in the conduct of governmental affairs. This presumption permits the Board to presume that the government’s agents acted in good faith, proceeded within the bounds of the law, and conformed their behavior to appropriate standards during the Applicant’s Naval service and subsequent administrative processing. The Applicant bears the burden of establishing his issues through the presentation of substantial and credible evidence. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that his discharge was in retaliation for his alleged “whistle-blowing.” The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief denied.

There is no requirement or law that grants recharacterization solely on the issue of enhancing employment opportunities and this issue does not serve to provide a foundation upon which the Board can grant relief. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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 18, effective
 12 Dec 1997 until 21 Aug 2002, 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 .

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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