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NAVY | DRB | 2006_Navy | ND0600044
Original file (ND0600044.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. ND06-00044

Applicant’s Request
The application for discharge review was received on 20051004. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). The Applicant requested a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.
In the acknowledgement letter, the Applicant was informed that he was approaching the 15-year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington D.C. area. As a result, the Applicant elected a personal appearance hearing. The Applicant was sent a scheduling notice for the September 2006 timeframe and subsequently responded requesting a documentary record discharge review.
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:

“Issue 1. My discharge was inequitable because it is based upon a few infractions that occurred within a short period of time relative to my total enlistment. It does not properly characterize my entire service. Previous military service includes an Honorable discharge and qualifications for several demanding duties including that of Naval Nuclear Power Operator.

Issue 2. The unauthorized absences that prompted my discharge were directly related to the hardship of my father being diagnosed with Alzheimer’s for which he was subsequently hospitalized and ultimately succumbed (December 1991). When leave was sought to address some of these issues, it was denied even though leave time was available. With the command in full knowledge of this family illness, no counseling was offered. These extenuating circumstances were not taken into account when the characterization of my discharge was determined.

Issue 3. The characterization of discharge does not reflect the true record of my character before or since my discharge. My military record shows that my service was honorable up until the last few months of my enlistment. Since my discharge, I have completed my Bachelor’s degree and have obtained a Professional Engineer’s license in the state of Virginia. Note that the Professional Engineer’s licensing process require several character endorsements.

Issue 4. I deeply regret my actions that led to my discharge from Navy, they were inappropriate. I attribute the poor decision that I made to youth, inexperience and the emotional stress that I was under at the time. I ask for the board’s clemency in this matter.”


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Applicant’s DD Form 214 (prior enlistment)
Professional Engineer License, Commonwealth of Virginia, expiry June 30, 2007
Transcript from Old Dominion University

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19850330 – 19850723               COG
         Active: USN                        19850724 – 19880227               HON

 Period of Service Under Review :
Date of Enlistment: 19880228             Date of Discharge: 19900928

 Length of Service (years, months, days):

         Active: 02 05 20 (excludes lost time)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 42 days
         Confinement:              none

 Age at Entry: 20

 Years Contracted: 6

 Education Level: 12                                 AFQT: 84

 Highest Rate: MM2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.9 (3)     Behavior: 2.7 (3)                 OTA: 2.87

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Sea Service Deployment Ribbon, Battle “E” Ribbon


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 :

880228:  Reenlisted this date for a term of 6 years.

890511:  NJP for violation of UCMJ, Article 91: Disrespect toward a Commissioned Officer on 890429.
         Award: Forfeiture of $200.00 pay per month for 1 month, reduction to E-4 (suspended for 6 months). No indication of appeal in the record.
900413:  Applicant to unauthorized absence at 0700 on 900413.

 900501:  Commanding Officer recommends Applicant’s Navy Enlisted Code change to NMPC-481: “Per OPNAVINST 1220.1B, recommend removal of MM2 G_ nuclear NEC effective 13 April 1990 due to his demonstrated unreliability. He is currently in an unauthorized absence status and missed most recent ship’s movement. He is also awaiting nonjudicial punishment for an additional unauthorized absence. Petty Officer G_ is unreliable for assignment to duty in connection with supervision, operation and maintenance of a nuclear propulsion plant. Should he return to THEODORE ROOSEVELT, he will not be assigned duties associated with the propulsion plant.”

900507:  Applicant from unauthorized absence at 2330 on 900507.

900511:  Applicant’s Navy Enlisted Code change recommendation approved.
900602:  Applicant to unauthorized absence at 0700 on 900602.

 900619:  Applicant from unauthorized absence at 2100 on 900619.
900626:  Summary Court-Martial.
         Charge: violation of the UCMJ, Article 86: (2 spec),
         Specification 1: Unauthorized absence from 900412 to 900507.
         Specification 2: Unauthorized absence from 900602 to 900619.
          Finding: to Charge and the specifications thereunder, guilty.
          Sentence: Forfeiture of $500.00 pay per month for 1 month, reduced to E-4, 60 days restriction.
         CA action 900630: Sentence approved and ordered executed.

900707:  Retention Warning: Advised of deficiency (Minor misconduct due to unauthorized absences, should it continue, will create an adverse record of minor disciplinary infractions, or worse, form a pattern of misconduct which cannot be tolerated), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
900821:  NJP for violation of UCMJ, Article 86 (13 specs): Fail to go to appointed place of duty, to wit: Restriction Musters (12 specs), and absent from appointed place of duty on 900725, to wit: Shaft Alley 1A.
         Award: Forfeiture of $400.00 pay per month for 2 months, restriction and extra duty for 40 days, reduction to E-3. No indication of appeal in the record.

900828:  Applicant notified of intended recommendation for 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.

900828:  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.
900914:  Commanding Officer, USS THEODORE ROOSEVELT, recommended discharge under other than honorable conditions by reason of commission of a serious offense and misconduct due to a pattern of misconduct. Commanding Officer’s comments: “MMFN G_ (Applicant) began his current enlistment as an E-5, but his pattern of misconduct has resulted in two NJP’s and a Summary Court-Martial imposing reduction to E-3. MMFN G_ (Applicant) has been counseled repeatedly by his chain of command, including receipt of a PG 13 warning on 900707. This disciplinary record reflects not only a pattern of misconduct, but a disregard for the authority of his superiors and his military responsibility. I find he has no potential for further useful service and I recommend that MMFN G_ (Applicant) be separated with an other than honorable discharge.”

900918:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19900928 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).

Issues 1, 3. The Applicant contends that his discharge is inequitable because it was based on a few infractions within a short period of time. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. 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 a retention warning, two nonjudicial punishment proceedings (NJP) and a summary court-martial for violations of Articles 86 and 91 of the UCMJ. The Applicant’s NJP on 19900821 for violation of Article 86 consisted of 13 specifications. There is also evidence in the record that the Applicant missed ship’s movement a violation of Article 87 of the UCMJ. Violations of Articles 87 and 91 are serious offenses. 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.

There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider. Relief denied.

Issues 2, 4. The Applicant contends that his personal family situation constituted extenuating circumstances and that these circumstances were not considered when his characterization of service was determined. The Applicant also contends that his “poor decision” was the result of “youth, inexperience and emotional stress.” While the Applicant may feel that his family situation and immaturity were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Furthermore, there is no indication in the record or in the documentation submitted by the Applicant that the Applicant’s personal situation was not considered by the separation authority. Relief denied.

The NDRB has no authority to provided additional review of this case since Applicant’s discharge occurred more than 15 years ago. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.



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. 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 87, missing movement and Article 91, insubordinate conduct.

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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