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NAVY | DRB | 2005_Navy | ND0501341
Original file (ND0501341.rtf) Auto-classification: Denied


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

ex-PCSN, USN
Docket No. ND05-01341

Applicant’s Request
The application for discharge review was received on 20050802. 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 before the Board in the Washington, D.C. Metropolitan area. 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 20060413. 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 General (Under 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:

“My discharge was base on 2 incident prior to me getting discharge from the navy. the first one, with me going to medical for help, that, which I got in trouble for and the second one with me and my chief got into it and I turn him in for it and they took me to captain mast and kick me out which I never been written up for any offenses to get me kick out.

It was more of a personal issue between me and my chief and they know what was going, but if a chief don’t like you, the don’t like you and you are out of there.”
Documentation
Only the service record 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)     20000128 - 20000927      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20000928             Date of Discharge: 20041014

 Length of Service (years, months, days):

         Active: 04 00 17
         Inactive: None

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

 Age at Entry: 21

 Years Contracted: 4 (28 month extension)

 Education Level: 12.5                      AFQT: 31

 Highest Rate: PC3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.00 (1)                      Behavior: 2.00 (1)                OTA : 2 .00
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Sea Service Deployment Ribbon


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 :

020109:  NJP for violation of UCMJ, Article 86 (Absence without leave).
         Date of Offense: 020109.
         Award: Forfeiture of ½ month’s pay for 1 month, extra duty for 15 days, reduction to E-2 (suspended for 6 month). No indication of appeal in the record.

030419:  Retention Warning: Advised of deficiency (Violation of UCMJ, Article 89 Disrespect toward a superior commissioned officer), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 030421:  Retention Warning: Advised of deficiency (Disrespect toward your superiors.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

040621:  Applicant diagnosed with a personality disorder. [Extracted from NAVPERS 1070/613 of 040628.]

 040628:  Retention Warning: Advised of deficiency (Disrespect toward superiors, tardiness and failure to report to appointed place of duty.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. [Date extracted from Commanding Officer’s letter dated 040921.]

 040915:  NJP for Charge I: Violation of UCMJ, Article 86 Unauthorized absence.
         Specification: In that Postal Clerk Third Class M_ A. S_(Applicant), U.S. Navy, FISC Pearl Harbor, Hawaii, on active duty, did on or about 0715 040830 without authority absent himself from Pearl Harbor Mail Center, Hawaii and did remain absent until on or about 0810 040830.
 Charge II: Violation of UCMJ, Article 91 Insubordinate conduct toward warrant officer, noncommissioned officer, petty officer.
Specification: In that Postal Clerk Third Class M_ A. S_(Applicant), U.S. Navy, FISC Pearl Harbor, Hawaii, on active duty, did or about 0812 040830 onboard Pearl Harbor Mail Center, Hawaii; was disrespectful toward Chief Postal Clerk T_ A. Z_, who was then in execution of his office, by saying, “YOU’RE FULL OF S__T!” twice or words to that effect.
Charge III: Violation of UCMJ, Article 92 Failure to obey order.
         Specification: In that Postal Clerk Third Class M_ A. S_(Applicant), U.S. Navy, FISC Pearl Harbor, Hawaii, on active duty, did onboard Pearl Harbor Mail Center, Hawaii, on 040830, did having knowledge of a lawful order issue by PC2(SW) I_, to wit; that PC3 S_(Applicant) would have work on the late shift on 040830. An order which it was his duty to obey at Pearl Harbor Mail Center.
         Award: Forfeiture of $792.00 pay per month for 2 months suspended, reduction to E-3. No indication of appeal in the record.

040921:  Commanding Officer, Fleet and Industrial Center, Pearl Harbor, Hawaii recommended discharge with a general (under honorable conditions) by reason of misconduct-minor disciplinary infractions, reference (a) as evidenced by enclosures (1) through (6). Commanding Officer’s comments: “Request your approval on the administrative separation of Seaman M_ A. S_(Applicant) IAW reference (a). With an understanding of his history prior to reporting to FISC Pearl Harbor, subsequent divisional officer counseling’s on performance, behavior and financial indebtedness culminating in a third “Page 13,” followed shortly by mast and non-judicial punishment; it is my conclusion that Seaman S_(Applicant) will never significantly improve his overall level of adaptability and functioning within the constraints of the U.S. Navy. Under the guidelines of reference (a) a GENERAL DISCHARGE under honorable conditions is hereby requested at the earliest opportunity.”

040928:  Applicant extended enlistment for 15 months.

040928:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct due to pattern of misconduct and misconduct due to commission of a serious offense.
040928:  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.
040929:  Commander, Navy Region Hawaii, directed the Applicant's discharge with a general (under 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 20041014 by reason of misconduct due to a pattern of misconduct (A) with a service characterization of general (under 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). The Board presumed regularity in the conduct of governmental affairs (D).

 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 discharge is warranted for behavior not sufficiently meritorious to warrant an honorable discharge. T he Applicant was awarded nonjudicial punishment (NJP) on 20020109 for a violation of UCMJ Article 86, unauthorized absence. Subsequent to this NJP, the Applicant was administratively warned by issuance of a NAVPERS 1070/613 Counseling/Retention warning on three occasions that further misconduct could result in administrative separation. On 20040915, the Applicant was awarded a second NJP for another violation of UCMJ Article 86, unauthorized absence, Article 91, insubordinate conduct, and Article 92, failure to obey order. Under applicable regulations, the Applicant’s misconduct did in fact constitute a pattern of misconduct. 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 his misconduct was the result of his Chief not liking him and implies that he was discharged in reprisal for reporting his Chief’s misconduct. 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 he was the victim of inappropriate behavior on the part of his Chief or anyone else in the Applicant’s chain of command. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. 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. 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. 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 .

D. 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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