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NAVY | DRB | 2006_Navy | ND0600082
Original file (ND0600082.rtf) Auto-classification: Denied


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

ex-AOAR, USN
Docket No. ND06-00082

Applicant’s Request
The application for discharge review was received on 20051017. 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 personal appearance hearing discharge review before the Board in the Washington, D.C. Metropolitan area. The Applicant did not designate a representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060726. After a thorough review of the available 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:

“My discharge was improper because I was carrying out a 12 month probation given to me by the Admin Board members. I was fulfilling my probation for six months and was told the findings were overruled. I had 9 months left of a 4 year contract.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant to Congressman W_ D. D_, dtd March 28, 2005
Applicant’s DD Form 214
Commanding Officer, USS ENTERPRISE (CVN 65), letter of recommendation for Applicant’s administrative separation, dtd December 27, 2004 (2 pgs)
Board Findings/Recommendations (2 pgs)
Commanding Officer, Carrier Strike Group TWELVE, letter directing Applicant’s administrative separation, dtd January 10, 2005 (2 pgs)
MILPERSMAN 1910-140 (12 pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20010424 - 20011106      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20011107             Date of Discharge: 20050207

 Length of Service (years, months, days):

         Active: 03 01 22 (excludes lost time)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 15 days
         Confinement:              24 days

 Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 80

 Highest Rate: AOAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.0 (2)              Behavior: 1.5 (2)                 OTA : 2 .25

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as corrected on Applicant’s DD215, issued April 21, 2005): None.


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 :

020411:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
 Violation of UCMJ, Article 92: Orders violation-underage drinking.
         Award: Forfeiture of $552.00 pay per month for 1 month (suspended x 1 month), restriction and extra duty for 30 days. No indication of appeal in the record.

020411:  Applicant issued retention warning. [Extracted from CO’s letter dated 041227.]
020724:  Civil Conviction: Virginia Beach General District Municipal Center for Underage possession of alcohol.
 Sentence: Fined $500.00, plus $67.00 court cost.

 021030:  Applicant issued retention warning. [Extracted from Record of Proceedings of Applicant’s Administrative Discharge Board.]
040210:  Applicant to unauthorized absence at 0700 on 040210.

040210:  Declared a deserter.

040212:  Applicant missed movement.

 040217:  Applicant from unauthorized absence at 0300 on 040217.
040311:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86: Specification: Unauthorized absence from 040210 until 040219.
Charge II: violation of the UCMJ, Article 87: Specification: Missing movement on 040212.
Additional Charge I: violation of the UCMJ, Article 86: Specification: Fail to go to appointed place on 031226.
Additional Charge II: violation of the UCMJ, Article 92: Specification: Dereliction of duty on 031226.
          Finding: to all Charges and specifications thereunder, guilty.
         Sentence: Forfeiture of 2/3 pay per months for 1 month ($931.00), reduced to E-2, confinement for 30 days.
         CA action 040325: Sentence approved and ordered executed.

040311:  Applicant to confinement.

040404:  Applicant from confinement.

040412:  Applicant to unauthorized absence.

040413:  Applicant from unauthorized absence.

040416:  Applicant to unauthorized absence.

040418:  Applicant from unauthorized absence.

040423:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct pattern of misconduct, misconduct commission of a serious offense and misconduct civilian conviction.

040504:  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

040507:  Applicant to unauthorized absence.

040510:  Applicant from unauthorized absence.

040515:  Applicant to unauthorized absence.

040517:  Applicant from unauthorized absence.

040623:  NJP for violation of UCMJ, Article 86: (4 specs), Unauthorized absence from 040412 until 040413, 040416 until 040418, 040507 until 040510, and 040515 until 040517.
         Award: Forfeiture of $500.00 pay per month for 2 months, restriction for 60 days, reduction to E-1. No indication of appeal in the record.
040818:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense. The Board found by unanimous vote that the preponderance of evidence did not support misconduct due to civil conviction. By unanimous vote, the board recommended separation by reason of misconduct due to a pattern of misconduct and commission of a serious offense suspended for 12 months.
041227:  Commanding Officer, USS ENTERPRISE (CVN 65), recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to commission of a serious offense and misconduct due to civil conviction. Commanding Officer’s comments: “AOAA C_’s (Applicant) misconduct indicates he does not have the potential for further naval service. On 18 August 2004, AOAA C_ (Applicant) had an Administrative Board in which the board recommended by a vote of 3 to 0 to separate with a characterization of Other Than Honorable suspended for a period of 12 months. I hereby disapprove the suspended separation and recommend that AOAA C_ (Applicant) be discharged from the naval service for misconduct due pattern of misconduct and misconduct due to commission of a serious offense. I further recommend that his characterization of service be Other Than Honorable.”

050110:  GCMCA, Commander, Carrier Strike Group Twelve, disapproving the Administrative Board’s recommendation, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct.

 Service record did not contain elements of information required for processing by reason of misconduct due to pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20050207 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 available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D). The Board presumed regularity in the conduct of governmental affairs (E).

The Applicant contends his discharge was improper because he “was carrying out a 12 month probation given to [him] by the Admin Board Members.” The Board found the Applicant’s issue without merit. The Applicant’s administrative separation board found the Applicant had committed misconduct by reason of pattern of misconduct and misconduct due to the commission of a serious offense. The board recommend separation under other than honorable conditions. The board also recommended a 12-month suspension of the Applicant’s discharge. However, applicable regulations indicate that the board’s recommendation regarding suspension of discharge is not binding on the Commanding Officer or the Navy. Subsequent to the Applicant’s separation board, the Applicant’s Commanding Officer recommended the Applicant’s separation, without suspension, and the Applicant’s discharge was directed without suspension by proper authority. Therefore, the NDRB found the Applicant’s discharge proper and equitable. Relief denied.

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 two retention warnings, two nonjudicial punishment proceedings and a summary court-marital conviction for violations of Articles 86, 87 and 92 of the UCMJ. Violations of Articles 87 and 92 are serious offenses. In addition, the Applicant’s record is marred by a civil conviction for underage possession of alcohol. 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 following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 any post-service documentation for the Board to consider. Relief denied.

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. 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), re-issued October 2002, effective 22 Aug 2002 until 25 April 2005, Article 1910-140 (formerly 3630600), SEPARATION 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 87, missing movement or Article 92, failure to obey order/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 .

E. 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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