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NAVY | DRB | 2005_Navy | ND0501507
Original file (ND0501507.rtf) Auto-classification: Denied


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

ex-FR, USNR
Docket No. ND05-01507

Applicant’s Request
The application for discharge review was received on 20050914. 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 20060619. 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 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:

“Service member’s ship returned from deployment & was denied leave due to operational commitment. Service member’s father was severely ill at the time, and he was under duress. Service member was late to muster. As a result he was sent to captain’s mast, where he requested an administrative discharge.”
Documentation
In addition to the service and medical records, 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: 19900329             Date of Discharge: 19930618

 Length of Service (years, months, days):

         Active: 02 09 01 (Does not exclude lost time.)
         Inactive: 00 05 19

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

 Age at Entry: 18

 Years Contracted: 8

 Education Level: 12                                 AFQT: 30

 Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.1 (3)                       Behavior: 2.9 (3)                 OTA: 3 .20
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Coast Guard Special Operations Service Ribbon, Southwest Asia Service Medal w/B Star, National Defense Service Medal, Sea Service Deployment Ribbon, Meritorious Unit Commendation


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 :

900918:  Commenced active duty for a period of 36 months.
910806:  Applicant on unauthorized absence 0700-1145, 910806.

 910822:  NJP for violation of UCMJ, Article 86 - Unauthorized absence from 0700, 06 Aug 91 to 1145, 06 Aug 91, a period of about 4 hours and 45 minutes.
 Date of Offense: 06 Aug 91.
Violation of UCMJ, Article 92: Failure to obey order or regulation.
          Award: Restriction for 30 days. No indication of appeal in the record.

910917:  Retention Warning: Advised of deficiency (Violation of UCMJ Article 86 (Unauthorized absence) and Article 92 (Failure to Obey Order or Regulation.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 911031:  NJP for violation of UCMJ, Article 134.77 - False or Unauthorized Pass Offenses.
         Date of Offense: 23 Oct 91
         Award: Restriction and extra duty for 15 days. No indication of appeal in the record.

920130:  NJP for violation of UCMJ, Article 86: Absent from appointed place of duty.
         Date of Offense: 19 Jan 92
         Award: Forfeiture of $100 per month for 2 months, restriction and extra duty for 30 days, reduction to E-2. No indication of appeal in the record.

920409:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 2045, 08 Apr 92 to 0106, 09 Apr 92, a period of about 4 hours and 21 minutes.
 Violation of UCMJ, Article 92: Failure to obey order or regulation.
Violation of UCMJ, Article 113: Misbehavior of a sentinel or lookout.
         Award: Forfeiture of $376 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.

920831:  Applicant on unauthorized absence 0700-2100, 920831.

920910:  NJP for violation of UCMJ, Article 86 - Unauthorized Absence from 0700, 31 Aug 91 until 2100, 31 August 92, a period of about 14 hours.
         Award: Forfeiture of $392 per month for 2 months, restriction and extra duty for 45 days, written reprimand. Forfeiture suspended for 6 months. No indication of appeal in the record.

 930404:  Applicant to unauthorized absence at 0730 on 930404.

 930405:  Applicant from unauthorized absence at 1130 on 930405 (1 days/surrendered).
930420:  Applicant to unauthorized absence at 0715 on 930420.

 930421:  Applicant from unauthorized absence at 0900 on 930421 (1 days/surrendered).
930503:  NJP for violation of UCMJ, Article 86:
         Specification 1: Unauthorized absence from 0730, 04 Apr 93 to 1130, 05 Apr 93, a period of about 28 hours.
 Specification 2: Unauthorized absence from 0715, 20 Apr 93 to 0900, 21 Apr 93, a period of about 25 hours and 15 minutes.
Violation of UCMJ, Article 92: Violation of a lawful general order.
          Award: Forfeiture of $407 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.

930506:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by record of violations of the Uniform Code of Military Justice in current enlistment, the most recent occurring onboard present duty station.
930510:  Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
930512:  Commanding Officer, USS INGERSOLL (DD-990) recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by record of violations of the Uniform Code of Military Justice in current enlistment, the most recent occurring onboard present duty station. Pending civilian charge for DUI. Commanding Officer’s comments: “Administrative proceedings for FR H_(Applicant) discharge were initiated due to his pattern of misconduct as evidenced by his record of violations of the Uniform Code of Military Justice. Enclosure (4) reflects that he has been afforded ample opportunity to conform to Navy Rules and Regulations. He has been counseled by his chain of command up to an including myself. FR H_(Applicant) has failed to understand the ramifications of his continued misconduct. Behavior of this type cannot be condoned and is not conducive to good order and discipline aboard a U. S. Naval warship. This discharge is in the best interests of both FR H_(Applicant) and the U. S. Navy. Accordingly, I recommend that FR H_(Applicant) be separated with an Other Than Honorable discharge.

930608:  BUPERS directed the Applicant's discharge under other than 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 19930618 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 alleges impropriety in that he was denied leave when his father was severely ill. He alleges inequity in that he received nonjudicial punishment when he was late to muster while under stress due to his father’s illness. The Applicant bears the burden of presenting substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention of inequity or impropriety. 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 one retention warning, and six nonjudicial punishment proceedings for violations of Articles 86 (4 specs), 92 (3 specs), 113, and 134 of the UCMJ. Violations of Articles 92, 113, and 134 of the UCMJ are considered serious offenses. At the time of his discharge, the Applicant had a pending civilian charge for driving under the influence, an additional serious offense. 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 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 5, effective 05 Mar 93 until 21 Jul 94), 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 order or regulation, Article 113 – misbehavior of a sentinel or lookout, and Article 134 – false or unauthorized pass offense.
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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