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NAVY | DRB | 2006_Navy | ND0600098

Original file (ND0600098.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW
DECISIONAL DOCUMENT

FOR OFFICIAL USE ONLY

ex-SA, USN
Docket No. ND06-00098

Applicant’s Request

The application for discharge review was received on 20051020. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Region. The Applicant did not designate a representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation by the American Legion.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20061002. 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 3-2 that the character of the discharge shall not change. The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to a pattern of misconduct .

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

The following issue was submitted by the Applicant and his representative at the time of the hearing:

“Equity Issue: Pursuant to 10 USC 874 (b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174D, Part IV, Paragraph 403 m (7), we request, on behalf of this former member, the Board’s clemency relief with an up-grade of his characterization of service on the basis of his post-service conduct.

In accordance with Title 32, CFR, section 724.116 and SECNVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue(s).

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because the discharge does not represent his true character. He has submitted 47 pages of additional documentation attesting to his post-service activities for consideration.

The SR shows that the Applicant earned a Battle “E” Ribbon (3^rd award), Sea Service Deployment Ribbon, Armed Forces Expeditionary Medal, and National Defense Service Medal. His final enlisted performance evaluation averages were 2.7(3) for performance, 2.3(3) for Behavior, and 2.56 for OTA. The SR shows that this Applicant was awarded NJP on 001113 for VUCMJ Article 86. This Applicant was awarded a NJP on 010330 for VUCMJ Article 91 and a VUCMJ Article 92. On 011022, he was awarded an NJP for VUCMJ, Article 91. This Applicant received a General (Under Honorable Conditions) discharge and separated for misconduct authorized by MILPERSMAN, Article 1910-140 (formerly 3630600).

After service, this Applicant still had a desire to serve his country in military service and enlisted in the US Army National Guard, where he is currently ranked as an E4. He is qualified for to perform duties assigned to a 21 B(combat engineer), a 63b(engine repair specialist), and a 92Y(unit supply specialist). To improve his character, he has attended family parenting and anger management courses. To raise his education level, he has completed 637 hours of correspondence courses, 25 hours of college level courses and 15 security courses for the Department of Homeland Security. He has a clean police record obtained by his current Army recruiter. He is a homeowner and has good credit. He has two boys and is happily married to his second wife. He has received a letter of recommendation from his former Petty officer, who is currently an E7 in the Navy. He requests relief so that he may enlist in the US Army on active duty, fulfilling his goals.

The American Legion’s express purpose in providing this statement, and any other submittals or opinions of record, is to aid the applicant in resolving any improprieties or inequities in the character and basis for discharge. Moreover, we rest assured that the Naval Discharge Review Board’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724; SECNAVINST 5420.174C, enclosure (1).

This case is now respectfully submitted to the Board for deliberation and disposition.”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214 (Member 1)
Applicant’s DD Form 214 (Member 4)
Character Reference ltr from W_ S_ D_, dtd April 26, 2004 (2)
Character Reference ltr from N_ T_, dtd May 28, 2004 (2)
Character Reference ltr from D_ D. T_, dtd April 12, 2004 (unsigned) (2)
Character Reference ltr from Elder Doctor A_ L. T_, Sr., dtd May 22, 2004 (2)
Ltr from Applicant, dtd June 11, 2004
Character Reference ltr from W_ S_ D_, dtd August 18, 2005 (2)
Ltr from Applicant addressing admittance into the United States Army, dtd July 22, 2005 (unsigned)
Ltr from Applicant, dtd May 9, 2005 (unsigned)
Virginia Beach Juvenile and Domestic Relations District Court, Commonwealth of Virginia, Custody and Visitation Order, dtd September 6, 2000
Army/ACE Registry Personal Web Transcript, issued February 11, 2006, 2 pages
Army Physical Fitness Test Scorecard, for tests conducted April 22, 2005, October 2, 2005 and June 4, 2006
Police Record Check, Prince George’s County Sher iff, requested September 8, 2006
Electronic Copy of DD 2624 (Drug Screening Report), reported August 21, 2006 (2)
Employment R eference from D_ W_, dtd August 17, 2006
Employment R eference from E_ P_, dtd August 18, 2006
Student Transcript from Independent Study Program, Emergency Management Institute, issued June 2, 2006
Applicant’s letter regarding desire to change RE-Code, dtd July 12, 2006
DA Form 4187 (Personnel Action), dtd May 18, 2005
Army National Guard Retirement Points History Statement, prepared June 1, 2006
Personnel Qualification Record extracts, 4 pages
Army Distance Learning Enrollment History, retrieved November 4, 2005, 6 pages
Enlistment Promotion Point Worksheet, undated
Unit Supply Specialist Phase II Certificate of Completion, dtd June 30, 2006
Character Reference from W. S_ D_, dtd March 30, 2006
Character Reference from 1LT J_ D. H_, OD, MDARNG, undated
Character Reference from MAJ D_ E. R_, MI, MDARNG, undated
Anger Management Class Certificate of Completion for course held October 20, 2004 to November 17, 2004
Parenting/Anger Management Class Certificate of Completion for course held from March 30, 2004 to May 11, 2004
Custom Protection Training Program Certificate of Training Achievement, awarded December 20, 2002
Custom Protection Officer Training Program Certificate of Training Achievement, awarded December 12, 2003
Understanding People Certificate of Completion, presented February 5, 2006
Old Testament Survey – Part II Certificate of Completion, presented February 5, 2006
Vacation Bible School Certificate of Appreciation, presented July 1, 2005
Standard Church Ministries Certificate, Evangelical Training Association, presented April 6, 2006
Growing Towards Spiritual Maturity Certificate of Completion, presented February 5, 2006
Phase I Discipleship Training Certificate of Completion, granted August 14, 2004

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Inactive: USNR (DEP)     19990719 – 19990809               COG
         Active: None

Period of Service Under Review :

Date of Enlistment: 19990810             Date of Discharge: 20020604

Length of Service (years, months, days):

         Active: 02 09 25
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: None
         Confinement:              None

Age at Entry: 23

Years Contracted: 4

Education Level: 12                                 AFQT: 43

Highest Rate: SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 2.7 (3)              Behavior: 2.3 (3)                          OTA: 2.56

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Battle “E” Ribbon (3 ^rd award), Sea Service Deployment Ribbon, Armed Forces Expeditionary Medal, National Defense Service Medal.

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

GENERAL (UNDER HONORABLE CONDITIONS)/ PATTERN OF MISCONDUCT, authority: MILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events :

001113: NJP for violation of UCMJ, Article 86: Unauthorized absence from appointed place of duty (Academic Skills Class on 02, 06, 10, 18 and 19 October 2000).
Award: Restriction and extra duty for 15 days. No indication of appeal in the record.

001122: Retention Warning: Advised of deficiency (Unauthorized absence on 2, 6, 10, 18, 19 October 2000). Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010216: Retention Warning: Advised of deficiency (Failure to disclose all required information for entry into the naval service), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010330: NJP for violation of UCMJ, Article 91: Insubordinate conduct. Specification: In that [Applicant] on or about 18 March 2001, was disrespectful in deportment towards CMDMC J_ D_, a Chief Petty Officer, then known by said to be a superior, who was in the execution of his office, by pointing his hand into CMDMC J_ D_’s face.
Violation of UCMJ, Article 92: Failure to obey order. Specification: In that [Applicant] did, on or about 18 March 2001, failed to obey a lawful general order to wit: Remove his hand from CMDMC J_ D_’s face and to be quiet, an order it was his duty to obey and failed to obey the same.
Award: Restriction and extra duty for 45 days, reduction to E-1 (suspended for 6 months). No indication of appeal in the record.

011022: NJP for violation of UCMJ, Article 91: Insubordinate conduct: Specification: In that [Applicant] on or about 2045, 20 September 2001, act disrespectful in language toward BM2(SW) L_ D_, a petty officer who was in the execution of his office, by saying to him “F_ you, you’re f_ me, and you can talk to the CO, XO, and Duty OPS, and to tell them,” or words to that effect.
Violation of UCMJ, Article 92: Failure to obey a lawful order.
Specification: In that [Applicant] having knowledge of a lawful order issued by OSC P_ to stand his watch in the proper area of the pier, an order which was his duty to obey, did on or bout 26 September 2001, fail to obey the same.
Award: Forfeiture of ½ pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2, forfeiture suspended for six months. No indication of appeal in the record.

020107: Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.

020107: Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

020220: 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 the commission of a serious offense, that the misconduct warranted separation, and recommended discharge with a character of service as general (under honorable conditions).

020222: Commanding Officer, USS MITSCHER (DDG 57), recommended to Commander, Carrier Group TWO, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to pattern of misconduct and misconduct due to commission of a serious offense. Commanding Officer’s comments: “SA N_ (Applicant) is a poor fit in the Navy and has great difficulty observing the chain of command and following orders. Beyond the three mast cases listed in paragraph 1. (d), he has acquired numerous counseling chits. The Board is exactly correct that he be separated, but I strongly feel that SA N_ should be separated from the Naval service with an Other Than Honorable discharge.”

020528: COMCARGRU TWO directed the Applicant's discharge with type characterization of general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.

040303: NDRB documentary record review Docket Number ND0 3-00831 conducted. Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020604 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of general (under 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. A general 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 and three nonjudicial punishment proceedings for violations of Articles 86, 91 and 92 of the UCMJ. The Applicant’s violations of Articles 91 and 92 are serious offenses for which a punitive discharge is authorized if adjudged as part of the sentence upon conviction at a special or general court-martial. 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 the service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. The Applicant provided extensive documentation regarding his post-service activities. Documentation provided by the Applicant included records concerning his service in the Army National Guard, educational accomplishments, character references, employment references and volunteer activities with his church. The Board was impressed with the Applicant’s ample personal and professional accomplishments, to include his dedicated service in the National Guard, consistent employment and, most of all, his steadfast commitment to success. However, after a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate. The evidence of post-service conduct was not sufficient to warrant an Honorable characterization of service. Relief denied.

The Applicant’s testimony and supporting documents revealed that the Applicant desired a change to his RE-Code. Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. An unfavorable RE-Code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

The following is provided for the edification of the Applicant. The Applicant has exhausted his opportunities for review by the NDRB. 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 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. 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 91, insubordinate conduct 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 .

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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NAVY | DRB | 2006_Navy | ND0600098

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