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NAVY | DRB | 2005_Navy | ND0501561
Original file (ND0501561.rtf) Auto-classification: Denied


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

ex-FA, USN
Docket No. ND05-01561

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 20060721. 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:

“To see if can get some benefits to help me with my situation I am in.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Application for Uniformed Service Identification Card DEERS enrollment
Supplemental Security Income Notice of Planned Action dtd March 30, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19870720 – 19880705               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19880706             Date of Discharge: 19910305

 Length of Service (years, months, days):

         Active: 02 07 29 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 50 days
         Confinement:              none

 Age at Entry: 18

Years Contracted: 4

Education Level: 11                                 AFQT: 67

 Highest Rate: FA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.0 (2)     Behavior: 2.8 (2)                 OTA: 2. 00

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Coast Guard Ribbon (SOS) 89APR01-89JUN30, Meritorious Unit Commendation 88JUN03-89DEC31.


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 :

890321:  NJP for violation of UCMJ, Article 86 (2 specs): Unauthorized absence.
         Specification 1: Unauthorized absence 2200, 890301 to 0515, 890302.
         Specification 2: Unauthorized absence 890307, 1830 to 2009.
         Award: Forfeiture of $150.00 pay per month for 1 month, restriction to BLDG 234 SSC GLAKES, IL for 14 days, extra duty for 14 days. No indication of appeal in the record.
890321:  Retention Warning: Advised of deficiency (Poor military performance, without authority, absent yourself from your organization, to wit: Service School Command, Great Lakes, Illinois.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
891119:  Applicant apprehended by civil authorities at 0600, 891119. Charges: Aggravated assault and discharging a firearm within city limits.

891222:  Applicant escorted onboard USS LEXINGTON (AVT 16) at 2130, 891222 by shore patrol.

900208:  Civil Conviction: Escambia County Court for aggravated assault and discharging a firearm within city limits
 Plea: NOLO CONTENDERE
Findings: Adjudication withheld
Fined: $151.00
 Sentence: 12 months probation x $40.00 per month cost of supervision.
900220:  Applicant to unauthorized absence from USS LEXINGTON (AVT 16) New Orleans at 1230 on 900220.
900220:  Applicant surrendered on board USS LEXINGTON (AVT 16) at 2330 on 900220 (11 hours).
900402:  Summary Court-Martial.
         Violation of the UCMJ, Article 86: (2 specs), Unauthorized absence 891119 to 891222 and from 1230, 900220 to 2300, 900220.
          Sentence: Forfeiture of $100.00 pay per month for 1 month, restriction for 15 days.
         CA action 900404: Sentence approved and ordered executed.
900605:  NJP for violation of UCMJ, Article 92: Dereliction in the performance of duties in that he negligently failed so show up for watch as it was his duty to do so.
 Award: Forfeiture of $200.00 pay per month for 1 month. No indication of appeal in the record.
900607:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct civil conviction-aggravated assault; discharging a firearm within city limits; misconduct commission of a serious offense-UA in excess of 30 days.

900607:  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board and obtain copies of documents supporting the basis for the proposed separation.
900714:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct commission of a serious offense-UA in excess of 30 days, by a vote of 2 to1 the board recommended the applicant be retained in the naval service.
900717:  Commanding Officer, USS LEXINGTON (AVT 16) recommended applicant be retained in the naval service. Commanding Officer’s comments: “After full consideration of the administrative board package, I concur with the boards recommendation that FA W_ (Applicant) be retained in the naval service. Formal counseling will be entered into his record and he will be given another opportunity to improve his military performance.”

900802:  CNMPC directed the Applicant retained and warned.
900808:  Retention Warning: Advised of deficiency (Your conviction on 900214 for discharging a firearm with city limits and your Article 86 violation of unauthorized absence from 891119 until 891222.), advised of consequences of further deficiencies, and issued discharge warning.
901102:  Applicant to unauthorized absence at 0730 on 901102.

 901113:  Applicant from unauthorized absence at 0835 on 901113 (11 days/surrendered).
901119:  Applicant to unauthorized absence at 0730 on 901119.

 901121:  Applicant from unauthorized absence at 0730 on 901121 (2 days/surrendered).
901126:  Applicant to unauthorized absence at 0730 on 901126.

 901128:  Applicant from unauthorized absence at 0730 on 901128 (2 days/surrendered).
901214:  Summary Court-Martial.
          Violation of the UCMJ, Article 86: (3 specs), Unauthorized absence from 901102 to 901113; 901119 to 901121; and 901126 to 901128.
          Sentence: Forfeiture of $482.00 pay per month for 1 month, bread and water for 3 days, confinement for 24 days, and reduction to E-1.
         CA action 901217: Sentence approved and ordered executed, except for forfeiture of pay and reduction, which shall be suspended for 6 months.
910119:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense as evidenced by your service record.

910119:  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 and the right to submit statements on own behalf either verbally or in writing before an Administrative Board or in writing if an Administrative Board is not convened.
910129:  Applicant to unauthorized absence at 0730 on 910129.

 910130:  Applicant from unauthorized absence at 0730 on 910130 (1 day/surrendered).
910201:  Applicant to unauthorized absence at 0730 on 910201.

 910202:  Applicant from unauthorized absence at 0730 on 910202 (1 day/surrendered).
910206:  Applicant to unauthorized absence on 910206. [Extracted from CO’s letter dated 910222.]

910222:  Commanding Officer, USS LEXINGTON (AVT 16) recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense. Commanding Officer’s comments: “FA W_ (Applicant) has been on board for one year and ten months. During this time his periods of unauthorized absences total 50 days. FA W_ (Applicant) has been counseled regarding his deficiencies but, his misconduct continues. FA W_’ (Applicant) conduct had been detrimental to departmental and divisional morale including being prejudicial to good order and discipline. FA W_ (Applicant) displays no potential for improvement or further naval service. Therefore, it is recommended that FA W_ (Applicant) be separated from the naval service and that such separation be under other than honorable conditions. FA W_ (Applicant) commenced a period of unauthorized absence on 910206, shortly after he was notified of the administrative separation proceedings. Due to his absence, his discharge medical evaluation has not been completed; however, this letter of transmittal is forwarded to you for action.”

910301:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct.

910305:  DD Form 214: Applicant discharged in absentia under other than honorable conditions by reason of misconduct due to pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged in absentia on 19910305 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 records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).

The Applicant desires an upgrade in characterization of service to general (under honorable conditions). 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 Navy was not honorable. Indeed, the Applicant’s records contain:
•         Non-judicial punishment proceedings on 19890321 for violation of two specifications of UCMJ Article 86 Unauthorized absence;
•         Retention warning entry on 19890321 for deficiencies concerning poor military performance and absent without authority from organization;
•         Civil conviction on 19900208 for aggravated assault and discharging a firearm within city limits;
•         Conviction by summary court-martial on 19900402 for violation of two specifications of UCMJ Article 86 Unauthorized absence;
•         Non-judicial punishment proceedings on 19900605 for violation of UCMJ Article 92 Dereliction in performance of duties;
•         Retention warning entry on 19900808 for deficiencies concerning conviction for discharging a firearm within city limits and unauthorized absence; and
•         Conviction by summary court-martial on 19901214 for violation of three specifications of UCMJ Article 86 Unauthorized absence.
 The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls well below that required for a general characterization of service. An upgrade would be inappropriate; therefore relief is denied.

The Applicant is advised that t he Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits or enhancing employment and educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Since t hese issues do not serve to provide a foundation upon which the Board can grant relief, r elief on this basis is not warranted.

The following is provided for the edification of the Applicant. The Applicant has exhausted opportunities for review at the NDRB. If further review is desired, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of service.

 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. 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 .
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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