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NAVY | DRB | 2005_Navy | ND0501211
Original file (ND0501211.rtf) Auto-classification: Denied


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

ex-DA, USN
Docket No. ND05-01211

Applicant’s Request
The application for discharge review was received on 20050712. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing discharge review before the Board in the Washington National Capital Region. The Applicant did not designate a representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing .

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060209. 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:

“The reason I am asking for a upgrade is because I think I was unfairly discharged by my Commanding Officer. I was unfairly sent to Captains Mast for minor infractions that could have been handled at a lower level. I never had any problems as far being a sailor. Never missed duty or any trouble for any other navy related things. For going to NJPs’ I was sent to a review board to determine whether or not I was to be retained in the navy. I took 3-witness along with myself to prove my ability as a sailor. I was retained by the review board with a probation period to stay out of trouble. But without incident the Commanding Officer was upset I was not discharged by the board he sent me to. Then (10) days later he called somebody to have me discharged from the Navy cutting my Navy career shorter than I had wanted it to be. I wanted to stay for many more years.”
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: None  
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19930624             Date of Discharge: 19960401

 Length of Service (years, months, days):

         Active: 02 06 23
         Inactive: 00 02 16

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

 Age at Entry: 20

 Years Contracted: 8

 Education Level: 12                                 AFQT: 49

 Highest Rate: DN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.8 (1)     Behavior: 3.2 (1)                 OTA: 3 .60 *

 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/ PATTERN OF MISCONDUCT, authority: MILPERSMAN, Article 3630600.
Chronological Listing of Significant Service Events :

930909:  Commenced active duty for a period of 24 months.
940324:  Retention Warning: Advised of deficiency (Violation of UCMJ Article (s) 92), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
940324:  NJP for violation of UCMJ, Article 92: In that SN K_ J. F_, USN, on active duty, having knowledge of a lawful order issued by DTCS W_, not to have females in his barracks room, an order which it was his duty to obey, did, at Matthews Hall, on or about 940317, Fail to obey same by wrongfully having a female in his barracks room.
 Award: Restricted to the limits of Naval Station, San Diego for 10 days and 10 days extra duties. No indication of appeal in the record.
940609:  Retention Warning: Advised of deficiency based upon CO’s Mast on 940609 for violation of UCMJ Article 92 (3 specs)-Failure to obey a general regulation.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
940609:  NJP for violation of UCMJ, Article 92 (3 specs): Failure to obey a general regulation.
 Award: Forfeiture of $200 per month for 1 month. No indication of appeal in the record.
941017:  NJP for violation of UCMJ, Article 92: Violation of a lawful general regulation.
         Award: Forfeiture of $150 per month for 2 months, reduction to next inferior pay grade (suspended for 6 months). No indication of appeal in the record.

941020:  Retention Warning: Advised of deficiency based upon CO’s Mast on 941017 for violation of UCMJ Article 92-Failure to obey a lawful general regulation.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
951002:  Retention Warning: Advised of deficiency based upon CO’s Mast on 951002 and were found guilty of UCMJ Article 111-Drunk driving and VUCMJ Article 134-False identification.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
951002:  NJP for violation of UCMJ, Article 111: DUI.
         Violation of UCMJ, Article 134: Wrongfully possess an official drivers license knowing to be false.
         Award: Forfeiture of $250 per month for 1 month (suspended for 6 months), extra duty for 45 days, reduction to E-2. No indication of appeal in the record.

951016:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to a commission of a serious offense as evidenced by all punishments under the UCMJ in your (Applicant) current enlistment.

951023:  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.
951215:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct and misconduct due to a commission of a serious, that such misconduct warranted separation, and recommended by a vote of 2 to 1 discharge under other than honorable conditions be suspended for 12 months.
960116:  Commanding Officer, Naval Dental Center, Great Lakes recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to a commission of a serious offense as evidenced by all punishments under the UCMJ in his current enlistment. Commanding Officer’s comments: “Per MILPERSMAN Chapter 36, reference (a), I recommend that DA F_ (Applicant) be separated from the Naval Service with an Other Than Honorable discharge. DA F_ (Applicant) is not suitable for military duty due to his continued trend of misconduct, pattern of misconduct, and misconduct due to a commission of a serious offense. This is DA F_’s (Applicant’s) fourth mast in 2 years of active duty service. Retention of DA F_ (Applicant) would be most detrimental to good order and discipline and to the operation of this command. I do not concur with the Board’s recommendation for a 12-month suspension. Furthermore, it is my strongest recommendation that DA F_ (Applicant) be separated with an Other Than Honorable Discharge at the earliest possible date.”

960131:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct pattern of misconduct.

 PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19960401 by reason of misconduct due to a pattern of misconduct (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 Applicant erroneously contends his discharge is improper. 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. The NDRB found that the Applicant had four retention warnings and the Applicant’s service was marred by four nonjudicial punishment proceedings for violation of UCMJ:

•         Article 92: (3 specs). (Failure to obey a general regulation) on 940324

•         Article 92: (3 specs). (Failure to obey a general regulation) on 940609

•         Article 92: (Violation of a lawful general regulation) 941017
•         Article 111: (DUI) and Article 134 (Wrongfully possess an official drivers license) on 951002
Violations of Article 92, 111 and 134 are considered serious offenses and typically warrant a punitive discharge if adjudged at a special or general court-martial. 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 NDRB advises the applicant, that the administrative board found that the Applicant did commit misconduct due to a pattern of misconduct and commission of a serious offense. The board recommended that the Applicant be separated, that the characterization of that discharge be under other than honorable conditions, and that the separation be suspended for 12 months. For the edification of the Applicant, an administrative board only has the authority to make recommendations concerning separations and characterizations. These recommendations are not binding on the Commanding officer, who may accept or reject an administrative board’s recommendation and forward his own recommendation to the Separating Authority. The Separating Authority is the entity that makes all final decisions concerning separations, the character of, and reason for discharge. In the Applicant’s case, the Commanding officer did not accept the Board’s recommendation to suspend the separation for 12 months. The CO forwarded his recommendation to expeditiously separate the Applicant with an other than honorable discharge, by reason of misconduct due to a pattern of misconduct and commission of a serious offense, to the Bureau of Personnel (BUPERS). After a review of all the documentation to include the command and administrative board’s recommendations, BUPERS concurred with the CO’s recommendation and directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

 The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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, credible evidence of a substance free lifestyle 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 additional evidence related to this 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 9, effective
22 Jul 94 until 02 Oct 96), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

 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 92 ( Failure to obey a general regulation), Article 111(DUI) and Article 134 (Wrongfully possess an official drivers license).
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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