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NAVY | DRB | 2006_Navy | ND0600367
Original file (ND0600367.rtf) Auto-classification: Denied


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

ex-EMFA, USN
Docket No. ND06-00367

Applicant’s Request
The application for discharge review was received on 20060103 . 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 designated Disabled American Veterans as the representative on the DD Form 293.
Decision

A documentary discharge review was conducted in Washington, D.C. on 20061108 . 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
Issues submitted by Applicant’s representative ( Disabled American Veterans):
“ The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant served in the U. S. Navy from Nov 13, 2001 until June 24, 2005. The Narrative Reason for separation was Pattern of Misconduct. The Applicant states that he was late too many times and was directed to the Captains Mast. During the meeting with the Captain he was asked what did he want to do, the Applicant states at that time he felt he had no direction or disciplined enough to continued on active duty. He state now he feels he made a mistake in l eaving the Navy. He state he really desired proper directions or help he needed at that time. He states he really enjoyed working in the electrical field. He state he served two tours of duty in the Persian Gulf. He received eight Ribbons and the Good conduct medal. It is important for the Board to note the many Post Service Character letters in the record to support the Applicant’s case, which shows he has greatly matured. He has direction and is disciplined in his work ethics, and he continues to be a great and valuable asset in his community. Therefore, it requested that the Board consider the mitigating and extenuating circumstances in this case, to include the impetuosity of his youth, and grant a favorable decision. If a favorable decision can not be granted at this time, it is requested that the Applicant be scheduled for a future Hearing.
DAV”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 4)
Clearance Letter from the City of Hayward, Police Records Clerk, dtd August 26, 2005
 Copy of California Identification Card
Picture of USS BONHOMME RICHARD (LHD 6)
 Character Reference ltr from C_ J. N_, dtd August 26, 2005
 Character Reference ltr from A_ L_, dtd August 26, 2005
Character Reference ltr from E_ G_, dtd August 29, 2005
Character Reference ltr from E_ A. W_, undated
Character Reference ltr from B_ C. H_, ED.D, dtd August 30, 2005
Character Reference ltr from T_ W. B_, dtd September 1, 2001
Character Reference ltr from Deacon J_ E_ S_ Sr., dtd September 1, 2005
Character Reference ltr from Reverend A_ V. H_-W_, dtd September 6, 2005
Character Reference ltr from J_ E. M_, Regional Vice President, The C _ Equity Group, President of J _ Enterprises, Broker for J. E. M_ Bonds & Insurance Service, undated
 Character Reference ltr from K_ M. A_, dtd September 2, 2005
Character Reference ltr from F_ L_, dtd September 2, 2005
Character Reference ltr from M_ H_ E_, DPM, JD, dtd September 5,2005
Character Reference ltr from R_ W_, dtd September 6, 2005
Character Reference ltr from J_ H_-S_, dtd September 7, 2007
Character Reference ltr from L_ T_, CLU, Financial Advisor, AIG Valic, dtd September 13, 2005
Character Reference ltr from S_ P_, dtd September 17, 2005
Character Reference ltr from S_ J_, dtd September 8, 2005
Character Reference ltr from G_ R. B_, dtd September 18, 2005
Ltr from I_ F_, Principal/Senior Coordinator, Educational Services, dtd February 19, 2000
 Representative ltr, unattributed and unsigned, dtd April 6, 2006 (3 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20010131 - 20011112       COG
          Active: None

 Period of Service Under Review :
Date of Enlistment: 20011113              Date of Discharge: 20050624

Length of Service (years, months, days):

          Active: 0 3 07 1 2
         Inactive: None
Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              None

Age at Entry: 1 9

Years Contracted: 4 ( 24 -month extension)

 Education Level: 12                                 AFQT: 53

Highest Rate: EMFN

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2 . 3 ( 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): Navy Unit Commendation, Navy “E” Ribbon, Good Conduct Medal, National Defense Service Medal, Global War on Terrorism Expeditionary Service M edal, Global War on Terrorism Service Medal, Sea Service Deployment Ribbon (2)


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 :

030127:  Retention Warning: Advised of deficiency (Failure to meet physical readiness test standards ). N otified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
041218 :  NJP for violation of UCMJ, Article 92 :
         Specification : Failure to obey other lawful order (NAVSTA, San Diego Instruction 5560.5F , driving on station with out a valid license) .
Award: R estriction and extra duty for 45 days, reduction to E- 2 (suspended for 6 months) . No indication of appeal in the record.

041218 :  Retention Warning: Advised of deficiency ( Commanding Officer’s NJP on 041218 for violation of Article 92: Failure to obey other lawful order. ), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
050222:  Reduction in pay grade awarded and suspended at NJP on 041218 vacated due to continued misconduct.
050222 :  NJP for violation of UCMJ, Article 92 (3 specs):
Specification 1 : In that Electrician’s Mate Fireman Apprentice J_ W. P_ (Applicant), U. S. Navy, USS BONHOMME RICHARD (LHD -6), on active duty, did, onboard USS BONHOMME RICHARD (LHD-6), on or about 2130 hours, 050101, without authority, fail to go at the time prescribed to restricted man’s muster, to wit: Hanger Bay, onboard USS BONHOMME RICHARD (LHD - 6).
Specification 2: In that Electrician’s Mate Fireman Apprentice J_ W. P_ (Applicant), U. S. Navy, USS BONHOMME RICHARD (LHD -6), on active duty, did, onboard USS BONHOMME RICHARD (LHD-6), on or about 0630 hours, 050103, without authority, fail to go at the time prescribed to restricted man’s muster, to wit: Hanger Bay, onboard USS BONHOMME RICHARD (LHD-6).
Specification 3: In that Electrician’s Mate Fireman Apprentice J_ W. P_ (Applicant), U. S. Navy, USS BONHOMME RICHARD (LHD -6), on active duty, did, onboard USS BONHOMME RICHARD (LHD-6), on or about 0630 hours, 050120, without authority, fail to go at the time prescribed to restricted man’s muster, to wit: Hanger Bay, onboard USS BONHOMME RICHARD (LHD-6).
         Award: Re striction and extra duty for 30 days . No indication of appeal in the record.
          [NDRB note: Although charged as a violation of Article 92, the Applicant’s misconduct was a violation of Article 86, and did not meet the definition of “serious offense” for the purpose of administrative separation.]
050402:  NJP for violation of UCMJ, Article 92:
          Specification: In that Electrician’s Mate Fireman Apprentice J_ W. P_ (Applicant), U. S. Navy, USS BONHOMME RICHARD (LHD -6), on active duty, having knowledge of a lawful order issued by Commanding Officer, USS BONHOMME RICHARD (LHD-6), to wit: Restriction Orders and Extra Duty Orders dated 23 February 2005, an order which it was his duty to obey, did, onboard USS BONHOMME RICHARD (LHD 6), on 050316, fail to obey the same by wrongfully failing to show up to muster at the appointed time.
         Award: Forfeiture of $200.00 per month for 2 months, restriction and extra duties for 30 days, reduction to E-1 (suspended for 6 months). No indication of appeal in the record.
         [NDRB note: Although charged as a violation of Article 92, the Applicant’s misconduct was a violation of Article 86, and did not meet the definition of “serious offense” for the purpose of administrative separation.]
050412 :  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct d ue to pattern of misconduct and misconduct due to commission of a serious offense.

050412 :  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.
050425 :  Commanding Officer, USS BONHOMME RICHARD (LHD 6) , recommended to Commander, Amphibious Group THREE, that the Applicant be discharge d with under other than honorable conditions by reason of Pattern of misconduct and misconduct due to commission of a serious offense. Commanding Officer’s comments: “ I have reviewed the enclosed documents and find that administrative separation criteria have been met. Over the past five months, Electrician’s Mate Seaman Apprentice P_ (Applicant) has been awarded NJP three times for violations of the UCMJ, to include Article 86 (3 specifications) of failure to go or leaving place of duty and two violations of UCJM Article 92, failure to obey other lawful orders. On April 3, 2005 one day after being placed on restriction following his last NJP he was UA from restricted man’s muster and counseled (enclosure (6)). Electrician’s Mate P_ has shown through his actions and his words that he is unwilling to follow even the most basic rules and regulations. His conduct is a hindrance to good order and discipline on this ship. I recommend that EMFA P_ be separated from the U.S. Navy with an other than honorable discharge. ”
050608 :  GCMCA, COMPHIBGRU THREE , directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to pattern o f misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20050624 by reason of misconduct due to a pattern of misconduct (A) 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 ( B and C ).

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 Physical Readiness Test failure, 2 retention warnings and 3 nonjudicial punishment proceedings for violations of Articles 92 of the UCMJ. 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. The Applicant submitted numerous character reference letters; however, the Board noted that most of them generally addressed the Applicant’s upbringing and church musical involvement. While noteworthy, the Applicant’s efforts need to be more encompassing to mitigate the misconduct for which he was discharged. 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, generally over an extended period of time. As of this time, the Applicant has not provided sufficient 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. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this 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), Change 11, effective
26 April 2005 until Present, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT .
B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 C . 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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