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NAVY | DRB | 2005_Navy | ND0501331
Original file (ND0501331.rtf) Auto-classification: Denied


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

ex-MSSR, USN
Docket No. ND05-01331

Applicant’s Request
The application for discharge review was received on 20050804. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable or general (under honorable conditions) and the Narrative Reason for Separation be changed. The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that he was approaching the 15-year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington D.C. Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060406. 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:

“To obtain employment, at the time of discharge PRES B_ stated that and upgrade would be given upon request due to war.”

 Applicant’s Remarks: (Taken from the DD Form 293): I was used as a scapegoat, as stated by CAPT. “ Because we have to show the citizen that we are not a problem in so many words I was sitting on the steps watching the happening when I was attacked by citizen police, then officers, 6 officers started beating me. I was just watching a riot.

Officers a female stated she saw everything and said “all hell broke loose when they arrived” I tried to call home as a witness in court cause she was there but was told that she had to go somewhere, which was stated by arresting officer who could not clarify where she was going.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Only the service and medical records was reviewed. 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: USNR (DEP)     19890216 – 19890220               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19890221             Date of Discharge: 19900914

 Length of Service (years, months, days):

         Active: 01 06 21 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 2 days
         Confinement:              none

 Age at Entry: 19

 Years Contracted: 4

Education Level: 12                                 AFQT: 55

 Highest Rate: MSSA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.0 (3)     Behavior: 2.6 (3)                 OTA: 3 .13*

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): None.

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/ Misconduct - Pattern of misconduct, authority: MILPERSMAN, Article 3630600.
Chronological Listing of Significant Service Events :

890819:  Record of Counseling: UA from 0545-0650.

890823:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful order by wrongfully consuming alcohol while under the legal drinking age of 21.
         Award: Oral reprimand. No indication of appeal in the record.

890823:  Retention Warning: Advised of deficiency (Violation of UCMJ, Article 92-Failure to obey a lawful order.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
890907:  Record of Counseling: Performance and Personal Behavior.

891001:  Record of Counseling: Performance, Responsibilities and others.

891002:  Record of Counseling: Performance and Responsibilities.

891010:  Record of Counseling: Performance.

891109:  NJP for violation of UCMJ, Article 86 (3 specs): Unauthorized absence.
         Specification 1: Unauthorized absence from appointed place of duty 14 OCT 89, for one hour.
         Specification 2: Unauthorized absence from appointed place of duty 15 OCT 89, for two hours and ten minutes.
 Specification 3: Unauthorized absence from appointed place of duty 16 OCT 89, for 7 hours and thirty minutes.
          Award: Forfeiture of $349 per month for 2 months, correctional custody for 30 days. No indication of appeal in the record.
900605:  Applicant to unauthorized absence at 0700 on 900605.

 900606:  Applicant from unauthorized absence at 0835 on 900606 (1 day/surrendered).
 900731:  Applicant to unauthorized absence at 0700 on 900731.

 900801:  Applicant from unauthorized absence at 0840 on 900801 (1 day/surrendered).

900803:  Applicant arrested for disorderly conduct, assaulting a police officer and resisting arrest. Court date 26 October 1990.

900808:  NJP for violation of UCMJ, Article 86 (2 specs): Unauthorized absence.
         Specification 1: Did at or about 0700, 31 July 1990, without authority, absent himself from his place of duty and did remain so absent until at or about 0840, 1 August 1990.
         Specification 2: Did at or about 0700, 5 June 1990, without authority, absent himself from his place of duty and did remain so absent until at or about 0835, 6 June 1990.
 Violation of UCMJ, Article 92: Did without authority fail to obey a lawful order.
          Award: Forfeiture of $362 per month for 2 months, 45 days restriction to NAS Oceana, reduction to E-1. No indication of appeal in the record.

900813:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct as evidenced by three NJPs and one civilian offense.

900813:  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.
900824:  Commanding Officer, Attack Squadron THIRTY-SIX recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. Commanding Officer’s comments: “MSSR H_ (Applicant) had tremendous potential for success in the United States Navy. He has, however, failed in every endeavor to become an acceptable service member. MSSR H_ (Applicant) has four documented cases in which he had been accused of aggression and assault; each of the first three have been dismissed, either by technicality or lack of evidence. The most recent case of disorderly conduct and assaulting a police officer is pending settlement in civil court. These are above and beyond his military offenses resulting in three CO’s NJPs. Counsel is quickly forgotten, including an attempt to rehabilitate and remotivate him through CCU. MSSR H_’s (Applicant) lawlessness and disregard for authority continue to be unacceptable; accordingly it is my strongest recommendation that he be separated from the naval service with a characterization of discharge as Other Than Honorable. A Page 13 dated 23 August 1989 meets counsel and warning requirements of reference (a). Enclosure (1) through (18) documented poor performance and misconduct.”

900905:  CNMPC 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 19900914 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 states he was used as a scapegoat and that all he was doing was watching a riot when he was attacked. The board found that while the applicant addresses one incident, there is credible evidence in the record, that the Applicant had numerous incidences of misconduct. 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. Four records of counseling, one retention warning and 3 nonjudicial punishment proceedings for violations of Articles 92, 86 (3 specs), and 86 (2 specs) of the UCMJ marred the Applicant’s service. The NDRB advises the Applicant that certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline. Violations of Article 92 and 86 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 Applicant contends that Pres. B_ stated that an upgrade would be given upon request due to the war. There is no evidence in the record, nor has the Applicant produced any evidence, to support this contention. Relief not warranted.

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 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 following is provided for the edification of the Applicant. The NDRB has no authority to provided additional review of this case since Applicant’s discharge occurred more than 15 years ago. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.


Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A, Change 8 effective 21 Aug 89 until 14 Aug 91), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A 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 violation of the UCMJ, Article 92 (Failure to obey a lawful order) and Article 86 (Unauthorized absence.
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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