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NAVY | DRB | 2005_Navy | ND0501556
Original file (ND0501556.rtf) Auto-classification: Denied


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

ex-MMFR, USN
Docket No. ND05-01556

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 did not designate a representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060717. 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:

“Because I have learned my lesson and I am trying to build a better future for my family and if I could go back and prove that I won’t make the same mistakes I would go.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
VA Form 21-4138 Statement in Support of Claim

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19960321 – 19960422               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19960423             Date of Discharge: 19981124

 Length of Service (years, months, days):

         Active: 02 07 02 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 93 days
         Confinement:              16 days

 Age at Entry: 21

 Years Contracted: 4

Education Level: 11                                 AFQT: 45

 Highest Rate: MMFN

 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): Navy Unit Commendation, Armed Forces Expeditionary Medal, Sea Service Deployment Ribbon.
* Not Available


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

UNDER OTHER THAN HONORABLE CONDITIONS/ PATTERN OF MISCONDUCT, authority: MILPERSMAN, Article 1910-140 (formerly 3630600).
Chronological Listing of Significant Service Events :

961127:  Applicant to unauthorized absence at 0700 on 961127.

 961211:  Applicant from unauthorized absence at 0700 on 961211 (14 days/surrendered).
970116:  NJP for violation of UCMJ, Article 86 (4 specs): Unauthorized absence.
         Award: Forfeiture of $99.00 pay per month for 1 month, restriction and extra duty for 7 days. No indication of appeal in the record.
970820:  Applicant to unauthorized absence at 0500 on 970820.

 970831:  Applicant from unauthorized absence at 2200 on 970831 (11 days/surrendered).
980331:  Applicant to unauthorized absence at 0900 on 980331.

 980427:  Applicant from unauthorized absence at 1215 on 980427 (27 days/surrendered).
980513:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 980331 to 980427.
         Award: Restriction and extra duty for 30 days, reduction to E-2 (suspended for 6 months). No indication of appeal in the record.

980806:  Reduction in pay grade awarded at NJP on 980513 vacated due to continued misconduct.
980806:  NJP for violation of UCMJ, Article 86 (4 specs);
         Failure to go to appointed place of duty on 980603; Absence from unit on or about 0630, 980604 until 0700, 980604; Leaving appointed place of duty on or about 2030, 980623, and on 980729.
 Violation of UCMJ, Article 92: Dereliction in the performance of duties on 980623.
         Award: Forfeiture of $463.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.

980911:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86: (2 specs); Unauthorized absence from appointed place of duty on 980819 and 980829.
 Charge II: violation of the UCMJ, Article 92: Failed to obey a lawful order.
         Charge III: violation of the UCMJ, Article 134: Breaking restriction on 980819 and 980829.
          Sentence: Confinement for 20 days.
          CA action 980925: Approved findings and sentence.

980927:  Applicant released from confinement and returned to full duty.

 981014:  Applicant to unauthorized absence at 0630 on 981014.

 981113:  Commanding Officer, USS NIMITZ recommended discharge under other than honorable conditions by reason of misconduct due to commission of serious offense as evidenced by his violation of the UCMJ, Article 92, (2 specs) dereliction of duty by willfully reading unauthorized material while on watch on 980623 and disobeying a lawful order on 980812 by failing to go directly from the floating accommodation facility to Nimitz Bank Building and misconduct due to a pattern of misconduct as evidenced by two or more punishments under the UCMJ, in violation of an administrative counseling/warning page 13 within his current enlistment. Commanding Officer’s comments: “SNM has been given numerous opportunities. Despite these chances, he has repeatedly been an unauthorized absentee resulting in 3 NJP’s and 1 SCM. Furthermore, SNM is currently UA. SNM has no further potential for naval service. I strongly recommend that he be separated with a discharge characterized as other than honorable.”

981124:  GCMCA, COMNAVAIRLANT NORFOLK, VA, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct.
981124:  Applicant discharged in absentia (41days).
990922:  Commanding Officer, USS NIMITZ (CVN 68) forwarded the administrative discharge package to CNPC.


Service Record contains a partial Administrative Discharge package.
Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged in absentia on 19981124 by reason of misconduct due to a pattern of misconduct (A) with a service characterization of under other than honorable conditions. After a thorough review of the available 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).

 In the absence of a complete summary of service, the Board presumed that, in accordance with Reference A, the Applicant violated a NAVPERS 1070/613 warning prior to processing. The Board also presumed that the Applicant was properly notified of separation proceedings and that he acknowledged his rights to be exercised or waived during separation proceedings. The Applicant bears the burden of overcoming this presumption of regularity by presenting any substantial and credible evidence. The Applicant did not provide any documentary evidence to challenge the propriety or equity of the discharge. Therefore, the Board considered the Applicant’s discharge proper and equitable. Relief not warranted.

The Applicant claims to have learned his lesson and therefore desires an upgrade to honorable. When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as under other than honorable conditions 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. There is irrefutable evidence that the Applicant’s conduct during his time in the service was not honorable. Indeed, the Applicant’s records contain:
•         Non-judicial punishment proceedings on 19970116 for violation of four specifications of UCMJ Article 86 (Unauthorized absence);
•         Non-judicial punishment proceedings on 19980513 for violation of UCMJ Article 86 (Unauthorized absence);
•         Non-judicial punishment proceedings on 19980806 for violation of four specifications of UCMJ Article 86 (Unauthorized absence) and Article 92 (Dereliction in performance of duty); and
•         Summary Court Martial conviction on 19980911 for violation of two specifications of UCMJ Article 86 (Unauthorized absence), Article 92 (Failure to obey order or regulation), and Article 134 (Breaking restriction).
 The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls well below that required for an upgrade in characterization of service. An upgrade would be inappropriate; therefore relief is denied.

The Applicant informs the Board that he is “trying to build a better future for [his] family.” There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits or enhancing employment and educational opportunities. Since these issues do not serve to provide a foundation upon which the Board can grant relief, relief on this basis 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 post-service accomplishments or any other evidence related to the 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), Change 18, effective
12 Dec 1997 until 21 Aug 2002, 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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