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NAVY | DRB | 2006_Navy | ND0600166
Original file (ND0600166.rtf) Auto-classification: Denied


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

ex-ATAA, USN
Docket No. ND06-00166

Applicant’s Request
The application for discharge review was received on 20051103. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. 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 20060908 . 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 General (Under 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:

 “First of al l, my separation code (JKA-convicted by civilian authority) is incorrect. I’ve never been convicted of a crime. Employers usually get confused after looking up the code. After completing Rehab, I went to Captain Mast for a conduct that happened way before Rehab. After Rehab, I didn’t misbehave or get into trouble. I feel that I wasn’t given a chance after Rehab. These are my two reasons why I’m asking for an upgrade.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 4)
Applicant’s DD Form 214 (Member 1)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20010423 - 20010619      COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 20010620             Date of Discharge: 20031219

 Length of Service (years, months, days):

          Active: 02 06 0 0 (Does not ex clude lost time)
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 1
         Confinement:              None

 Age at Entry: 19

 Years Contracted: 4

Education Level: 12                                 AFQT: 54

Highest Rate: ATAN

 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): National Defense Service Medal, Sea Service Deployment Ribbon
* Not Available


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 :

030314:  NJP for violation of UCMJ, Article 109: Damage to personal property (property of a Greek National).
         Violation of UCMJ, Article 134: Drunk and Disorderly.
          Award: Forfeiture of $703.00 pay per month for 1 months ( $113.00 s uspended for 6 months), restriction and extra duty for 30 days. No indication of appeal in the record.
030314:  Retention Warning: Advised of deficiency (CO’s NJP held 14 MAR 03 for Violation of the UCMJ, Article 109 – Damage to Personal Property (Property of a Greek National) and Article 134 – Drunk and Disorderly.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
030802:  Navy drug and alcohol counselor and Licensed Independent Practitioner at CVN-76 diagnosed Applicant as Alcohol/Drug dependent and recommended Applicant be scheduled for Level III treatment.

030824:  Applicant to unauthorized absence at 0600 on 030824.

 030825   Applicant from unauthorized absence at 0600 on 030825 (1 day/surrendered).
030926:  Applicant released from treatment and assigned to C ontinuing C are.
031025:  NJP for violation s of UCMJ.
 Charge I: Article 86 , Unauthorized a bsence .
         Specification: In that Aviation Electronics Technician B_ R. P_ (Applicant), U. S. Navy, USS RONALD REAGAN, on active duty, did, at or about 0600, 24 August 2003, without authority, absent himself from his organization, to wit: USS RONALD REGAN, located at Norfolk, Virginia, and did remain so absent until at or about 0600, 25 August 2003.
 Charge II: Article 134 , Disorderly conduct, drunkenness.
 Specification: In that Aviation Electronics Technician B_ R. P_ (Applicant), U. S. Navy, USS RONALD REAGAN, on active duty, was, on board USS RONALD REAGAN, located at Norfolk, Virginia, on or about 22 July 2003, drunk and disorderly which conduct was of a nature to bring discredit upon the armed forces.
Award: Forfeiture of $645.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
0311 20 :  Applicant notified of intended processing for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct due to pattern of misconduct and alcohol rehabilitation failure.
031120:  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.
031215:  Applicant found fit for separation.
031215:  Command ing Officer, USS RONALD REAGAN ( CVN 76), informed Commander, Navy Personnel Command , that the Applicant was processed for separation by reason of misconduct due to pattern of misconduct and alcohol rehabilitation failure. Commanding Officer’s comments: “Aviation Electronics Technician P_ (Applicant) has been to CO’s NJP on two different occasions were he plead guilty to damaging personal property, two specifications of drunk and disorderly conduct, and unauthorized absence. Aviation Electronics Technician P_ (Applicant) was assigned to a continuing care plan for participation in a structured program entailing group counseling, educational and therapeutic workshops, physical training, relapse prevention, and attendance at 12-step meetings. While enrolled in the program, he failed to comply with applicable rules and regulations and was discharged prior to successful completion. He is an administrative burden who continually fails to follow Navy rules and regulations. After careful consideration of enclosures (1) through (7), I separated him with a General (Under Honorable Conditions).”

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20031219 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). The Board presumed regularity in the conduct of governmental affairs (E).

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 a retention warning and two nonjudicial punishment proceedings for violations of Articles 86, 109 and 134 of the UCMJ. The Applicant’s violation of Article 109 of the UCMJ is the commission of a serious offense for which a punitive discharge is authorized if adjudged as part of the sentence upon conviction at special or general court-martial. The evidence of record also shows that the Applicant failed to adhere to the terms of his aftercare treatment. 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 Applicant implies that his separation is inequitable because he was subject to nonjudicial punishment proceedings for misconduct preceding his Level III treatment. The Applicant also implies his discharge is inequitable because he “wasn’t given a chance” after rehabilitation. The Applicant’s issues are without merit. The evidence of record shows the Applicant met the criteria for discharge by reason of misconduct due to a pattern of misconduct and that the Applicant’s service was not improperly characterized. Neither the evidence of record, nor the documentation submitted by the Applicant demonstrate that the Applicant’s discharge was improper or inequitable. Relief denied.

The Applicant implies that his discharge should be changed because his separation co de is incorrect. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. However, for the edification of the Applicant, at the time of the Applicant’s discharge, the appropriate separation code for the Applicant’s reason for separation, pattern of misconduct, was “JKA.” Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. 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 Present, 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 109, damage other than military property.

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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