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NAVY | DRB | 2006_Navy | ND0600303
Original file (ND0600303.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-ICFR, USN
Docket No. ND06-00303

Applicant’s Request
The application for discharge review was received on 20051215. 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 before the Board in the Washington, D.C. Metropolitan area. The Applicant did not designate a representative on the DD Form 293.

Decision

A personal appearance hearing was conducted in Washington, D.C. on 20061023. 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 4 to 1 that the character of the discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to commission of a serious offense.
The NDRB did note administrative errors on the original DD Form 214. Block 18, Remarks, should contain the following statement: “CONTINUOUS HONORABLE ACTIVE DUTY FROM XXXXXX UNTIL XXXXXX,” and Block 28, Narrative Reason for Separation, should read: “_____________________.” The Commander, Naval Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.






PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“This will be the third attempt to get an upgrade on my discharge. I have been suffering from high blood pressure and my feet have been hurting for several years since being discharged. I was treated for these problems during my enlistment. Although I made a lot of mistakes as a youth, I served my country during a time of war and did my job at a high level. I’m requesting a change in discharge so I can receive my benefits and get treatment for my illness which occurred during my enlistment.”
Additional issues submitted by the Applicant at the time of the Personal Appearance H earing on 20061023:
Issue 1: “Equity Post Service. I feel that my discharge should be upgraded based on the fact that I’ve proven over the years to be an outstanding citizens in my community. I have attended school to further my education. I’m a licensed barber and I have an associated degree in business management. I am currently working towards my bachelor’s degree at the University of Arkansas at Little Rock (UALR). I work part time with the Pulaski County Election Commission. I currently attend church at Second Baptist Church in Little Rock working with the Youth Ministry. I sponsor two youth programs which involve softball and football. I do volunteer work for Muscular Dystrophy Associates involving the Lock-Up Program. I am engaged and I have a family of six (3 boys and 1 girl). I also support the local Sheriffs Association and the Arkansas State Troppers. ”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant at the time of the Personal Appearance Hearing on 20061023 , was considered:

Letter from the Applicant with his Opening Statement to the Board, dtd October 23, 2006 (2 pages) COMMISSION OF SERIOUS OFFENSE SHELL

THE FINDING FOR MISCONDUCT IS EFFECTIVE FOR 910815 - 930304 ONLY.

A general discharge is written “UNDER HONORABLE CONDITIONS (GENERAL)”.

SPN CODE EFFECTIVE 830210 until 930628
CODE               NARRATIVE REASON
 GKQ               Misconduct – Commission of a serious offense               Board
HKQ               Misconduct – Commission of a serious offense              Board waived
 JKQ               Misconduct – Commission of a serious offense              No board

PART II - SUMMARY OF SERVICE


 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19890626 – 19900610               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19900611             Date of Discharge: 19911206

 Length of Service (years, months, days):

         Active: 01 05 26
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
          Confinement:              6 days
Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 49

 Highest Rate: ICFA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.0 (1)              Behavior: 2.0 (1)                 OTA: 2 .60

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Southwest Asia Service Medal, National Defense Service Medal.


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

UNDER OTHER THAN HONORABLE CONDITIONS/ Misconduct - commission of a serious offense , authority: MILPERSMAN, Article 3630600.
Chronological Listing of Significant Service Events :

900731:  NJP for violation of UCMJ, Article 92: Having knowledge of a lawful order issued by CO, RTC, San Diego, CA, to wit: NAVCRUITRACOMSDIEGOINST 5400.2C, CH2, PARA D, General Rules and REGS, DTD 880310, on or about 900722, fail to obey the same by disobeying RCPO’S order to keep quiet and get back into his bunk.
 Violation of UCMJ, Article 117: On or about 900722, wrongfully used provoking words towards SR M_, company’s RCPO.
Violation of UCMJ, Article 134: On or about 900722, wrongfully communicate to SR P. D. H__, company’s MAA, a threat to injure SR P. D. H__.
         Award: Forfeiture of $250.00 pay per month for 1 month. No indication of appeal in the record.

900731:  Retention Warning: Advised of deficiency (Violation of the UCMJ Art. 92: Failure to obey other lawful written order, Art. 117: Provoking speeches and gestures, Art. 134: Communicating a threat.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 910707:  NJP for violation of UCMJ, Article 86: Unauthorized from appt place of duty at 1345, 91MAY24.
         Violation of UCMJ, Article 91 (3 Specs): Fail to obey a PO2 on 91MAY24; fail to obey a PO1 on 91MAY25; Fail to obey a PO1 on 91JUN03; additional charges.
 Violation of UCMJ, Article 86 (3 specs): Unauthorized absence from appt place of duty at 1530, 91JUN03; 0850, 91JUN4; 2000, 91JUN12.
Violation of UCMJ, Article 91 (3 specs): Fail to obey a CWO2 on 91JUN12; Fail to obey a CPO on 91JUN13; disrespectful to a PO2 on 91 JUL05.
         Award: Forfeiture of $376.00 pay per month for 1 month, 3 days bread and water, reduction to E-1. No indication of appeal in the record.




911024:  NJP for violation of UCMJ, Article 86: Unauthorized from appt place of duty a 1000, 91AUG29.
 Violation of UCMJ, Article 91: Was disrespectful in language to SCPO on 91AUG29.
          Award: Forfeiture of $376.00 pay per month for 1 month, 3 days of bread and water. No indication of appeal in the record.

911104:  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 commission of a serious offense as evidenced by all punishments under the UCMJ in your current enlistment.
911104:  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.
911118:  Commanding Officer, USS DWIGHT D. EISENHOWER (CVN 69) recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. CO’s comments: “ICF J_ (Applicant) serious violation of the UCMJ is incompatible with naval service. In view of the seriousness of his offense he is considered to have no potential for further productive military service. I strongly recommend that ICFR J _ be discharged from the naval service under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by all punishments under the UCMJ.”

911121:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19911206 by reason of misconduct due to commission of a serious offense (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).

The Applicant states the he made “a lot of mistakes as a youth.” While he may feel that his youth and immaturity was 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. Relief denied.

The Applicant states that “I served my country during a time of war and did my job at a high level”. 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. 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 and 3 nonjudicial punishment proceedings for violations of Articles 86, 91, 92, 117, and 134 of the UCMJ. Violation of UCMJ Articles 91, 92, and 134 are considered serious offenses for which a punitive discharge is authorized by a special 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.

The Applicant stated that his post service conduct had proven that he was an outstanding citizen in his community. 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. T he Applicant testified that he obtained an associate s degree, attends college in pursuit of a bachelor’s degree , owned a business , and worked for the county election commission. He further testified that he supported youth sports, youth ministry, and the local chapter of the Muscular Dystrophy Association with both time and monet ary donations. The Applicant also stated that his involvement with civilian authorities involved “over 10” speeding tickets, with his driver’s license having been suspended twice due to “points”. While the Board acknowledges the Applicant’s testimony, the Applicant failed to provide any post-service documentation for the Board to consider. Relief denied.

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), effective 15 Aug 91 until
04 Mar 93, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

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, Articles 91 (Insubordinate conduct toward warrant officer, noncommissioned, petty officer), 92 (Failure to obey other order), and 134 (Threat, communicating)..

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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