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NAVY | DRB | 2006_Navy | ND0600423
Original file (ND0600423.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-ISSA, USN
Docket No. ND06-00423

Applicant’s Request
The application for discharge review was received on 20060123. 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 20060316. 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 and reason for discharge shall not change. The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to commission of a serious offense .
PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“The discharge received (general discharge) was unjust, the discharge should be upgraded to honorable.

(Second DD Form 293): Reason for separation was unjust, unfair, and affects quality of life I was separated on the basis of misconduct. But misconduct was never proven on my part. After this was shown to discharge authorities, I was still discharged. I do not know at this time, why I could/should have been discharged. There is no reason!”

 Applicant’s Remarks: (Taken from the Second DD Form 293). “I was discharged without appropriate reason. I was discharged without prior knowledge of discharge date. I was denied my last 3 paychecks from the military due to my fighting my discharge, I was discharged with “Misconduct” as reason for discharge-when misconduct can not be found on my part. I appealed the discharge attempt several times before separation, when an investigation is conducted-it will be shown, I should not be out of the service.
I was denied unemployment based on character of discharge, I have also been denied employment based on the discharge I received. Assistance is needed ASAP!!!”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Statement from Applicant, History of Problem, undated (10 pgs)
Outstanding Hospital Bill, NMC Portsmouth, VA, dtd May 9, 2004
Applicant’s DD Form 214
Evaluation Report & Counseling Record, dtd July 15, 2003
Punitive Restriction Orders
Special Request/Authorization
Appeal from Nonjudicial Punishment, undated
Nonjudicial Punishment Appeal Denial ltr, dtd December 3, 2003 (2 pgs)
Notification and Standard of Punitive Restriction, dtd December 4, 2003
Page 2 of Administrative Separation Processing Notice
Letter of Suspension of SCI and all classified information, dtd September 24, 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20011221 – 20020715               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20020716             Date of Discharge: 20040323

 Length of Service (years, months, days):

         Active: 01 08 08
         Inactive: None

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

 Age at Entry: 17 (Parental Consent)

 Years Contracted: 4

Education Level: 12                                 AFQT: 61

 Highest Rate: ISSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (2)             Behavior: 2.67 (3)                OTA: 2 .94

 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.


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

GENERAL (UNDER HONORABLE CONDITIONS) /MISCONDUCT, authority: MILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

031024:  NJP for violation of UCMJ, Article 92: In that Information Specialist Seaman, U.S. Navy, USS BATAAN, on active duty, on board USS BATAAN, on or about August 2003, fail to obey a lawful general regulation, to wit: Joint Ethics Regulation, DOD Directive 5500.7R, section 2-301, change 4 dated 980806, by wrongfully using a Federal Government communication system and equipment, to wit: a USS BATAAN computer with internet access, for other than official and authorized purposes, to wit: viewing pornographic images and corresponding with pornographic actors.
 Violation of UCMJ, Article 134: In that Information Specialist Seaman, U. S. Navy, USS BATAAN, on active duty, did, at or near Norfolk, Virginia, on divers occasions from 030825 through 030915, in writing communicate to AT3(F) B_, certain indecent language, to wit: “don’t you know I will f_ the shit outta u”; and a description of a planned sexual encounter.
         Award: Forfeiture of $670.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. Appeal denied on 031203 [extracted from Applicant’s supporting documents].
031123:  NJP for violation of UCMJ, Article 92 (2 specs): Failure to obey order or regulation. Specification 1: In that Information Specialist Seaman Apprentice, U.S. Navy, USS BATAAN, on active duty, having received a lawful order from the Commanding Officer, to wit: paragraph 1.C, enclosure (1), LHD5INST 5800.3, dated 18 February 2003, an order which it was his duty to obey, did, on board USS BATAAN, at sea, on or about 21 November 2003, fail to obey the same by wrongfully failing to be present for three restricted personnel musters.
         Specification 2: In that Information Specialist Seaman Apprentice, U.S. Navy, USS BATAAN, on active duty, having knowledge of a lawful order issued by the Executive Officer, Capt T_, U.S. Navy, to report to his man overboard station, an order which it was his duty to obey, did, on board USS BATAAN, at sea, on or about 21 November 2003, fail to obey the same by wrongfully failing to report to his man overboard station.
         Award: Forfeiture of ½ pay per month for 2 months, restriction for 60 days. No indication of appeal in the record.

040120:  Applicant notified of intended recommendation for separation. No other information available [extracted from Applicant’s supporting documents.]

040120:  Applicant’s election of rights. No other information available [extracted from Applicant’s supporting documents.]

040305:  Applicant notified of intended recommendation for discharge by reason of misconduct due to commission of a serious offense. Applicant notified that the least favorable characterization of service possible is general (under honorable conditions).

040305:  Applicant advised of rights and having consulted with counsel, elected to submit a written statement for consideration by the separation authority, to obtain copies of the documents used to support the basis for the separation, and General Court-Martial Convening Authority (GCMCA) review.
040319:  Commanding Officer, Transient Personnel Unit, Norfolk forwarded to Commander, Navy Region, Mid-Atlantic, recommendation for disapproval of Applicant’s request for retention.

040319:  Commander, Navy Region, Mid-Atlantic directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense.

040330:  Commanding Officer, Transient Personnel Unit, Norfolk forwarded the administrative discharge package to CNPC. Commanding Officer’s comments: “ISSA S_ (Applicant) reported to Transient Personnel Unit (TPU), Norfolk on December 2003 in a temporary duty status from USS BATAAN (LHD 5) for administrative separation processing. He requested a General Court-Martial Convening Authority (GCMCA) review. The GCMCA reviewed his request and directed that ISSA S_ (Applicant) be separated. ISSA S_ (Applicant) was an administrative burden and disciplinary problem to both TPU and BATAAN. He is incapable of adhering to the rules and regulations of the Navy and unwilling to conduct himself in a manner conducive to good order and discipline. Accordingly, he was discharged from the Navy on 23 March 2004 with a General Discharge.”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20040323 by reason of misconduct due to commission of a serious offense (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).

By regulation, a discharge shall be deemed proper, unless it is determined that an error of fact, law, procedure, or discretion has substantially prejudiced the rights of the Applicant. The Applicant was discharged with a general (under honorable conditions) by reason of misconduct due to the commission of a serious offense. A review of the Applicant’s service record convinced the Board that a preponderance of evidence exists to support the Applicant’s basis for separation by virtue of his two NJPs on 20031024 and 20031123. The Applicant was awarded NJP for violations of UCMJ Article 92 for wrongful use of a government computer to view pornography and make contact with pornographic actors, failing to present for restricted musters and failing to present for a man overboard drill. The Applicant also violated UCMJ Article 134 by using indecent language toward a Third Class Petty Officer. The record further reveals that the Applicant was properly processed and notified for separation by reason of misconduct due to commission of a serious offense on 20040305 with a least favorable characterization of general (under honorable conditions). On 20040319, the Commanding Officer, Transient Personnel Unit Norfolk, recommended to Commander, Navy Region Mid-Atlantic, that the Applicant be discharged with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense. On 20040319, the Commander, Navy Region Mid-Atlantic, directed the Applicant’s discharge. Based upon the above review, the Board unanimously concluded that the Applicant’s discharge processing was in substantial compliance with applicable statutes, rules, and regulations. Despite the Applicant’s contentions, the Board could find no error of fact, law, procedure, or discretion that might afford the Applicant relief. Thus, the Board concluded that relief is not warranted.

Regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment. Furthermore, there are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis of characterization for a Sailor’s overall service. The incident need not result in formal punishment to be properly used to characterize a Sailor’s service. When the service of a member of the U.S. Navy has met the standard for acceptable conduct and performance, it is appropriate to characterize that service as honorable. A general (under 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. T he Applicant’s service was marred by two nonjudicial punishment proceedings for violations of UCMJ Articles 92 and 134. 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. Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service. Relief is not warranted.

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 02 until 25 April 2005, Article 1910-142 [formerly 3630605], SEPARATION 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, Article 92, failure to obey order or regulation, or Article 134, indecent language.

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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