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NAVY | DRB | 2006_Navy | ND0600378
Original file (ND0600378.rtf) Auto-classification: Denied


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

ex-EM3(SS), USN
Docket No. ND06-00378

Applicant ’s Request
The application for discharge review was received on 20060112 . 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 and 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. 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 20061109 . 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:
“ I have been trying to get a good job at a Federal Prison and have been denied due solely to having had a general discharge. I can’t see why one mistake makes my ten years of experience completely null & void. I was married to the girl for 2 years and we have had one beautiful baby girl from it. I can’t see why me falling in love & having a child is grounds for making 10 years of experience not usable on a resume, since everyone wants to see my DD214 & everyone passes me up after seeing “General Discharge with RE-4 as a REENTRY Code”. ”

Documentation
In addition to the service and medical record s , the following additional documentation, submitted by the Applicant , was considered:
Applicant ’s DD Form 214 (Service 2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19931021 - 19940717       COG
         Active: USN      19940718 - 19970807       HON
                   USN      19970808 - 20000906      HON

 Period of Service Under Review :
Date of Enlistment: 20000907              Date of Discharge: 20030801

Length of Service (years, months, days):

          Active: 0 2 1 0 25
         Inactive: None

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

Age at Entry: 24

Years Contracted: 5

Education Level: 12                                 AFQT: 88

Highest Rate: EM1

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.8 ( 4 )                        Behavior: 2.8 (4 )                  OTA: 3. 26

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Navy and Marine Corps Achievement Medal (3), Navy Unit Commendation, Navy “E” Ribbon, Good Conduct Medal for Period Ending 00Jul16, Navy Expeditionary Medal (2), National Defense Service Medal (2) , Sea Service Deployment Ribbon , Navy Sharpshooter Pistol Shot Ribbon, Submarine Insignia, Flag Letter of Commendation


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 :

000907 :  Reenlisted this date for a term of 5 years.
030320:  NJP for violation of UCMJ, Article 92: Dereliction of duty .
         Specification: In that Electrician’s Mate M_ J. C_( Applicant ), USN, NNPTU, on active duty, who knew of his duties at NNPTU, Charleston SC, on or about 030319 , to stand a proper SRO watch and to train his under instruction watch, was derelict in the performance of his proper watchstanding by urinating while on watch in maneuvering as SRO, instead of obtaining appropriate relief for a head call and to provide proper training for his under instruction watch, as it was his duty to do.
         Award: Oral /written a dmonition, reduction to E-5. Award suspended for 6 months. No indication of appeal in the record.
030320:  Retention Warning: Advised of deficiency (Article 92 - dereliction of duty), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
0306 2 3 :  Reduction in pay grade to E-5 awarded at NJP on 030320 vaca ted due to continued misconduct (inappropriate behavior with a student as a staff member).

030707 :  NJP for violation of UCMJ, Article 92: Failure to obey a lawful order.
         Specification: In that Electrician’s Mast First Class M_ J. C_( Applicant ), USN, Naval Nuclear Power Training Unit (NNPTU), on active duty, having knowledge or a lawful order issued by Commanding Officer, NNPTU, to wit: Paragraph 4(e), Consolidated Directives Manual 5354.2A (Volume 1)(CH-4), which states, “Personal relationships between staff members and students within Navy Training commands are prohibited,” an order it was his duty to obey, did at or near NNPTU, Charleston SC, between on or about February 2003 and May 2003, fail to obey the same by having inappropriate relationship with ET3 D_.
         Award: Reduction to E-4 and oral reprimand. No indication of appeal in the record.

 030716 :  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct - pattern of misconduct.
030716 :  Applicant advised of rights and having consult ed with counsel, elected to obtain copies of the documents used to support the basis for the separation and to submit a statement. [Statement not found in record.]

030730 :  Commanding Officer, Navy Nuclear Power Training Unit, Charleston, directed Applicant ’s discharge with a general (under honorable conditions) character of service by reason of misconduct due to a pattern of misconduct as evidenced by two nonjudicial punishments during current enlistment . Commanding Officer’s comments: “ EM3 C_ ( Applicant ) is being proces sed for separation due to a pattern of misconduct. In considering this administrative separation, I took into account references (a), and (b), enclosure (1) through (5), EM3 C_’s performance of duty, the circumstances surrounding his misconduct, the likelihood of reoccurrence, and the efforts made by this command to assist him.
         EM3 C_’s chain of command has exhausted every effort to bring this Sailor up to Navy standards only to receive negative results. Unfortunately, EM3 C_ has not taken the assistance made to him seriously. His actions are a strong indication that if he were retained on active duty, it is foreseeable that his personal behavior would lead to further misconduct and overshadow any potential for future Naval service. Therefore, I consider him to have no potential for continued Naval service. Hs actions are not conducive to good order and discipline at NPTU or in the Navy. ”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20030801 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 uniqu e to this case, the Board found that the discharge was proper and equitable (C and D).

The Applicant implies that his characterization is based on “one mistake.” Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.
An under other than honorable conditions or 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 Article 92 of the UCMJ. Violations of Article 92 of the UCMJ are serious offenses, for which a punitive discharge is authorized if adjudged as part of the sentence upon conviction at 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. 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 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 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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