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NAVY | DRB | 2005_Navy | ND0501175
Original file (ND0501175.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-SN, USN
Docket No. ND05-01175

Applicant’s Request
The application for discharge review was received on 20050706. 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 20051215. 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:

“After I was discharged from the Navy, getting a good paying job has been hard for me. I have been over looked because of my discharge. My discharge does not say I’m or was a disgrace to the military. That is how I am being treated in the civilian world. I’m in a university making good grades, but the loans have put me in debt, without my (MGI) Bill I am lost.”
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 (DEP)     20010427 – 20010708               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20010709             Date of Discharge: 20040409

 Length of Service (years, months, days):

         Active: 02 09 01
         Inactive: None

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

 Age at Entry: 30

 Years Contracted: 4

Education Level: 08                                 AFQT: 32

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.0 (1)              Behavior: 3.0 (1)                 OTA: 3 .00

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service 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 :

020919:  Retention Warning: Advised of deficiency (After numerous counselings by your superiors about your lackadaisical attitude and military bearing, you continued to remain in this state. A lot of leeway and informal counseling(s) have been given to you for your actions, now you are to the point of being a bad influence toward your peers, who notice these actions and being disrespectful toward a petty officer. Following counseling(s), you seem to straighten up and then go back into your unacceptable habits, which include shaving, being at appointed place of duty and general military bearing, this will not be tolerated. You are oldest Seaman in the division, but not necessary the most mature and reliable. You attitude, military bearing, work habits and daily performance is inappropriate for the goals we are trying to accomplish, it is unsuitable and is punishable by court martial. Any more of the above deficiencies will be pursued by means of NJP.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
030509:  Retention Warning: Advised of deficiency (Violation of the UCMJ, Article 86, 91, and 92.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
030509:  NJP for violation of UCMJ, Article 86 (2 specs): Unauthorized absence.
         Violation of UCMJ, Article 91 (3 specs): Insubordinate conduct towards a petty officer.
 Violation of UCMJ, Article 92 (4 specs): Failure to obey and order or regulation.
         Award: Forfeiture of $670.00 per month for 2 months (1 month suspended), restriction and extra duty for 45 days, reduction to E-3 (suspended for 6 months). No indication of appeal in the record.
040111:  Applicant absent without leave (AWOL) since on or about 0805 on 040111.
040112:  Applicant missed sailing of vessel from Mayport, FL enroute to JAX Operational area.
040123:  Retention Warning: Advised of deficiency (Violation of the UCMJ, Article 86.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 040123:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
         Award: Forfeiture of ½ month pay for 1 month (suspended), restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
040209:  Applicant absent without leave (AWOL) since on or about 0800 on 040209.
040209:  Applicant missed sailing of vessel from Mayport, FL enroute to JAX Operational area.

040407:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct commission of a serious offense.

040407:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.
040407:  Commanding Officer, Transient Personnel Unit, Jacksonville forwarded the administrative discharge package to CNPC. Commanding Officer’s comments: “SA T_’s (Applicant) consistent disregard for good order and discipline warrant an Other than Honorable Discharge.”

040408:  COMNAVPERSCOM MILLINGTON, TN directed the Applicant's discharge under other than honorable conditions by reason of misconduct commission of a serious offense.

 Service Record contains a partial Administrative Discharge Package

 PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20040409 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 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).

The Applicant contends that his discharge has negatively impacted his stature and employment prospects in the private sector. The Applicant requests his characterization of service be upgraded to honorable, based on his belief, that his military service was not disgraceful. When the service of a member of the U.S. Navy has been honest and faithful, 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:

•         3 retention warnings,
•         2 nonjudicial punishment proceedings:
o        20030509
♣         For violations of Article 86 (2 specs): Unauthorized absence
♣         For a violation of Article 91: Insubordinate conduct towards a petty officer
♣         For violations of Article 92 (4 specs): Failure to obey and order or regulation.
o        20040123:
♣         For violations Article 86: Unauthorized absence
Violations of Articles 86, 91, and 92 are considered serious offenses and typically warrant a punitive discharge if adjudged at a special or general court-martial. Furthermore, the record shows two unadjudicated violations of article 87 (missing movement); each of these violations if adjudicated are also considered serious offenses. The NDRB advises the applicant that his service record is missing elements of the administrative discharge package. In the Applicant’s case, the Board presumed that the Applicant’s discharge was regular in all respects. The Board found that 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 and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.








 The Applicant states he has had a hard time finding a good paying job, is in debt, and is lost without his (MGI) benefits. The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

The following is provided for the edification of the Applicant. 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. As of this time, the Applicant has not provided any post-service documentation for the Board to consider.

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), re-issued October 2002, effective 22 Aug 02 until 25 April 2005, 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 violations of the UCMJ, Article 86 (Unauthorized absence), 91 ( Insubordinate conduct towards a petty officer), and 92 ( Failure to obey and order or regulation)

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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