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NAVY | DRB | 2005_Navy | ND0501554
Original file (ND0501554.rtf) Auto-classification: Denied


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

ex-MMFN, USN
Docket No. ND05-01554

Applicant’s Request
The application for discharge review was received on 20050920. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). The Applicant requests a documentary record discharge review. The Applicant designated American Legion as the representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060629. 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:

“I feel my discharge is inequitable because the offense was grossly misjudged considering 30 months of service with no other adverse action. Also, the nature of the offense as well.”
Representative submitted no issues.

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: USNR (DEP)     19910625 – 19910722               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19910723             Date of Discharge: 19950430

 Length of Service (years, months, days):

         Active: 03 09 08
         Inactive: None

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

 Age at Entry: 19

 Years Contracted: 4

Education Level: 12                                 AFQT: 56

 Highest Rate: MMFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.0 (4)              Behavior: 2.8 (4)                 OTA: 3. 05

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Southwest Asia Service Medal with Bronze Star, Sea Service Deployment Ribbons with 2 Bronze Star, Armed Forces Expeditionary Medal with Bronze Star.


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 :

930205:  NJP for violation of UCMJ, Article 92: Failure to obey a by drinking underage on 930112.
 Violation of UCMJ, Article 134: Disorderly conduct on 930112.
          Award: Forfeiture of $200 pay per month for 1 month, restriction and extra duty for 20 days, reduction to E-1 (suspended for 6 months). No indication of appeal in the record
930205:  Retention Warning: Advised of deficiency (Misconduct by evidence of your non-judicial punishment of 930205 for violation of the UCMJ, Article 92, fail to obey a lawful written order on 930112; and Article 134, and disorderly conduct on 930112.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
930212:  Reduction in pay grade awarded at NJP on 930205 vacated due to continued misconduct.

930212:  NJP for violation of UCMJ, Article 86: Unauthorized absence from his appointed place of duty, to wit: Restricted Men’s Muster at 0630, 930206; 0630, 930210; and 0600, 930211.
         Award: Forfeiture of $150.00 pay per month for 1 month, 3 days confinement on bread and water. No indication of appeal in the record.

950401:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0600, 950320 to 1600, 950320.
         Award: Forfeiture of $497.00 pay per month for 1 month, restriction and extra duty for 30 days. No indication of appeal in the record.

950402:  Applicant notified of intended recommendation for discharge by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct and that the least favorable characterization of service was under other than honorable conditions.

950403:  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.
950405:  Medical evaluation found applicant not dependent on alcohol.

 950414:  Commanding Officer, USS AMERICA recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct. Commanding Officer’s comments: “MMFN L_’s (Applicant) misconduct warrants separation. His presence is detrimental to morale and good order and discipline on board America. He has no potential for further military service. I strongly recommend that MMFN L_ (Applicant) be separated immediately from the naval service under other than honorable conditions by reason of misconduct due to commission of a serious offense. REQ discharge authorization soonest.

950417:  Commanding Officer, USS AMERICA (CV-66) forwarded the administrative discharge package to CNP.

950421:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19950430 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).

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 Applicant’s service was marred by one retention warning and three nonjudicial punishment proceedings for violations of Articles 92, 134, and 86 (4 specs) of the UCMJ. Violation of Article 92 of the UCMJ is considered a 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 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 violation of the UCMJ, Article 92 – failure to obey order or regulation.
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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