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NAVY | DRB | 2005_Navy | ND0501305
Original file (ND0501305.rtf) Auto-classification: Denied


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

ex-ENFR, USN
Docket No. ND05-01305

Applicant’s Request
The application for discharge review was received on 20050727. The Applicant requested a documentary record review and that his characterization of service be changed to honorable. The Applicant did not designate a representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060406. 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 a pattern of misconduct .

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Applicant’s issues, as stated on the application:

“I BELIEVE IT SHOULD BE CHANGE DUE TO THE FACT I WAS NEVER ISSUED AN ART. 15, AND THE ISSUE AT HAND WAS, I DID NOT TAKE DIRECT ORDER FROM MY FIRST CLASS, HE ORDER ME TO PUT A USED PART ON THE AHELOHANER DOOR, AND I BELIEVE THAT THE USED PART WOULD NOT WORK I STOPPED DRINKING, I ALSO EARNED RIBBONS, AND MEDALS. THEREFORE, I AM ASKING THAT MY DD214 BE UPGRADED TO HONORABLE. . I KNOW I WAS WRONG IN DIRECT ORDER, BUT IF YOU WOULD LOOK AT MY FOLDER, I DO THE BEST I CAN WHEN I WAS IN THE SERVICE”


 Documentation
In addition to the service record the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Letter from Board for Correction of Naval Records to the Applicant, dated April 06, 2005
Form from State of Illinois Department of Veterans’ Affairs dated February 02, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20011022 - 20011024      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20011025             Date of Discharge: 20050106

 Length of Service (years, months, days):

         Active: 03 02 12
         Inactive: None

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

 Age at Entry: 22

 Years Contracted: 4 (12 month extension)

 Education Level: 12                                 AFQT: 53

 Highest Rate: ENFN

 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, Coast Guard Special Operations Medal, Sea Service Deployment Ribbon
* Not Available


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
GENERAL (UNDER HONORABLE CONDITIONS)/ PATTERN OF MISCONDUCT, authority: MILPERSMAN, Article 1910-140 (formerly 3630600).
 Chronological Listing of Significant Service Events :

011022:  Pre-service waiver for chart “C” offense (theft) granted.

 030710:  NJP for violations of the UCMJ, Article 134 (disorderly conduct, drunkenness), Article 91(insubordinate conduct), and Article 128 (assault).
 Awarded: Restriction and extra duties for 30 days, and reduction to E-2. No indication of appeal in the record.
031011:  NJP for a violation of the UCMJ, Article 92 (failure to obey and order).
         Award: Restriction and extra duty for 45 days.
No indication of appeal in the record. [Extracted from Commanding Officer’s letter dated 050103, confirmed on NAVPERS 1070/604.]
040624:  NJP for violations of the UCMJ, Article 128 (assault) and Article134 (disorderly conduct, drunkenness).
 Awarded: Restriction for 60 days and reduction to E-2.
No indication of appeal in the record.
040624:  Retention Warning: Advised of deficiency (assault, disorderly conduct, and drunkenness), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
041206:  Violations of UCMJ, Article 89 (disrespect) by telling Ensign L_ “I am not doing anything”, Article 91 (insubordinate conduct) by refusing to obey a lawful order of a Chief Petty Officer to help EN3 L_ with the OPTEST and reset of the existing assembly on the hangar door limit switches, and Article 92 (failure to obey, derelict of duty, 4 specifications).

041217:  NJP for violations of the UCMJ, Article 89 (disrespect toward a superior commissioned officer, 06 December 2004), Article 91 (insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, 06 December 2004), and Article 92 (failure to obey other lawful order, 4 specifications):
 Specification 1: Failed to obey a lawful order issued by ENS L_ to help EN3 L_ with the OPTEST and reset of the existing assembly on the hangar door limit switches, 06 December 2004.
Specification 2: Derelict in the performance of duties by failing to help EN3 L_ with the OPTEST and reset of the existing assembly on the hangar door limit switches on 06 December 2004.
Specification 3: Derelict in the performance of duties by failing to finish draining the aft capstan before he went on liberty on 06 December 2004.
Specification 4: Derelict in the performance of duties by failing to correct 3 deficiencies within the division workcenter before he went on liberty on 06 December 2004.
          Award: Restriction for 60 days, reduction to E-1. No indication of appeal in the record.
041229:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general by reason of misconduct due to a pattern of misconduct.
041229:  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.
050103:  Commanding Officer, USS THOMAS S. GATES (CG 51) directed the discharge of ENFR S_ (Applicant) with a general (under honorable conditions) by reason of misconduct due to a pattern of misconduct. Commanding Officer’s comments: “Although Fireman Recruit S_ (Applicant) is a phenomenal mechanic, his disdain for good order and discipline make it impossible for any further corrective efforts and warrant his separation from the Naval Service. He has been afforded every opportunity to succeed with the overwhelming support of this command but he has blatantly disregarded every attempt.
 Fireman Recruit S_’s (Applicant) record of Captain’s Masts demonstrates his contempt for authority, disregard for military standards, and disdain for good order and discipline with multiple charges for assault, insubordination, disrespect and drunkenness. Despite being convicted at Captain’s Mast in July 2004, attending anger management classes, in-patient alcohol treatment and several additional personal behavior counseling sessions, Fireman Recruit S_’s (Applicant) repeatedly and unhesitatingly failed to comply with basic military discipline rules when dealing with peers and seniors, culminating in yet another Captain’s Mast for disrespect and failure to obey a lawful order.
With four NJP convictions (and numerous formal and informal counseling sessions) in less than 3.5 years of service it is quite apparent that Fireman Recruit S_ (Applicant) has repeatedly and clearly demonstrated his contempt for basic military standards (much less the Navy Core Values), is beyond redemption, and is without question unfit for future naval service. Therefore, I am without hesitation or reservation separating Fireman Recruit S_ (Applicant) from the naval service by reason of misconduct (pattern of misconduct) with a General discharge from active duty.”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20050106 by reason of misconduct due to a pattern of misconduct (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).

To permit relief a procedural impropriety or inequity must have occurred during the discharge process. 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. A general (under honorable conditions) characterization of service 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 four nonjudicial punishments for violations of the UCMJ, Article 89 (disrespect), Article 91 (insubordinate conduct, 2 specifications), Article 92 (failure to obey and dereliction of duty, 4 specifications), Article 128 (assault), and Article 134 (disorderly conduct/drunkenness, 2 specifications) . MILPERSMAN Article 1910-140 defines the misconduct for which the Applicant was discharged, a “pattern of misconduct”, as 2 or more punishments under the UCMJ within the current enlistment. Furthermore, reference (A) dictates that the service of a member separated for a pattern of misconduct shall normall y be characterized as under other than honorable conditions. Characterization of service as honorable is not authorized unless the Applicant's record is otherwise so meritorious that any other characterization would be clearly inappropriate. In the Applicant’s case the record clearly documented the pattern of misconduct for which he was separated. The Board could discern no impropriety or inequity and therefore considered the discharge proper and equitable. Relief denied.

 The Applicant contends that his service, as evidenced by his medals and ribbons, was deserving of an honorable discharge. Applicable 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. There are circumstances where misconduct by even a single adverse incident may form the basis for administrative discharge and the characterization of a Sailor’s overall service. Despite the Applicant’s commendations for specific periods of service, his service record documented four nonjudicial punishments. Separations under these conditions generally result in an under other than honorable conditions characterization of service. The evidence of record clearly documents the Applicant’s blatant disregard for authority and does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.
The Applicant contends that his discharge was based was based upon an infraction of the UCMJ which he was never taken to an Article 15 hearing. For the edification of the Applicant , the administrative discharge process is a separate and distinct process from punitive proceedings such as NJP and court-martial. Administrative discharge processing is administrative in nature and not a form of punishment. The administrative discharge process may be initiated prior to, following, or even in the absence of NJP as a completely separate process. The record clearly documents four punishments under the UCMJ during his single enlistment. The NDRB found no impropriety in the Applicant's discharge based on a pattern of misconduct. 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 stated that he has stopped drinking. After careful consideration the Board concluded that the Applicant’s unsubstantiated statement is insufficient to mitigate his misconduct by while in the Naval service. Relief denied.

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 2002 until 25 April 2005, Article 1910-140 (formerly 3630600), SEPARATION 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 each violation of UCMJ, Articles 89, 91, 92, and 128.
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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