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NAVY | DRB | 2006_Navy | ND0600462
Original file (ND0600462.rtf) Auto-classification: Denied


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

ex-AA, USN
Docket No. ND06-00462

Applicant’s Request
The application for discharge review was received on 20060208 . 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 20061130. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, impropriety in the narrative reason for separation was discovered by the NDRB. The Board’s vote was unanimous 3-2 that the reason for discharge shall change to: GENERAL (UNDER HONORABLE CONDITIONS)/SECRETARIAL AUTHORITY, authority: MILPERSMAN 1910-164, Separation Code “JFF.”





PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Applicant’s issues, as stated on the application:
“ I believe my discharge was improper because I expressed to several members of my chain of command how extremely unhappy I was in the Navy. I completed three years and almost five months in the Navy. Shortly before my discharge I was at the point where I did not care how I got out, I just wanted out. I was going through a divorce during this time, and may have contributed to me feeling the way I did. I am a lot happier now that I am back home and a civilian again. I would like to move on with my life and go to college, which is the reason why I joined the Navy. I plan to become an electronic engineer, and the G.I. Bill would make it possible to achieve that goal. If I could get my discharge changed I would be forever grateful.

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

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20000207 - 20000816       ELS
                  USNR (DEP)       20010921 - 20011118      COG
        
Period of Service Under Review :
Date of Enlistment: 20011119              Date of Discharge: 20050310

Length of Service (years, months, days):

          Active: 0 3 0 3 22 (Does not exclude lost time)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 5 day s
         Confinement:              None

Age at Entry: 20

Years Contracted: 4 ( 3 -month extension)

Education Level: 12                                 AFQT: 72

Highest Rate: AN

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.8 (4)              Behavior: 2.3 (4)                 OTA : 2.46

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, Navy Unit Commendation , Global War On Terrorism Expeditionary Medal, Global War On Terrorism Service Medal


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

GENER AL (UNDER HONORABLE CONDITIONS) /PATTERN OF MISCONDUCT, authority: MILPERSMAN, Article 1910-140 (formerly 3630600).
Chronological Listing of Significant Service Events :

020321 :  NJP for violation of UCMJ, Article 86: Absence without leave .
         Violation of UCMJ, Article 92: Failure to obey order or regulation .
Violation of UCMJ, Article 107: False official statement.
         Award: Forfeiture of $ 552.00 pay per month for 2 month s , restriction and extra duty for 45. No indication of appeal in the record.
050225 :  Counseling: Advised of deficiency ( As a result of Executive Officer’s Inquiry (XOI), you are being advised that your performance is substance and unprofessional . ), notified of corrective actions and assistance available.

050302 :  Applicant to unauthorized absence at 1200 on 050302 .
050307 :  Applicant from unauthorized absence at 1230 on 050307 .

050308 :  NJP for violation of UCMJ, Article 86 : Absence without leave.
         Award: Forfeiture of $ ½ pay p er month for 2 month s , restriction for 45 days, reduction to E- 2 . No indication of appeal in the record.
050308 :  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.

050308 :  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights .

050310 :  Commanding Officer, Electronic Attack Squadron 135 , reported to Commander, Navy personnel Command , that the Applicant was discharge d with a general (under honorable conditions) character of service by reason of misconduct due to a pattern of misconduct . Commanding Officer’s comments: “ATAA H_ (Applicant) cannot reasonably be retained in the U.S. Navy due to his unwillingness to follow naval regulations resulting in a pattern of misconduct. He was separated from the U.S. Navy Delayed Entry Program (DEP) on 000816, and at the time was not recommended for reenlistment [encl (2)]. Because this took place during a previous enlistment, it is not taken into account when establishing a pattern of misconduct. However, this is noteworthy for establishing a historical behavior pattern.
ATAA H_ attended CO’s NJP on 020321 while stationed in Pensacola, FL [encl (3)]. He was found guilty for violation of UCMJ Articles 86, 92, 107 — absence without leave, failure to obey lawful order, and false official statement.
Throughout his time in VAQ-135, ATAA H_ has displayed a poor attitude, substandard performance, and has demonstrated difficulty in following regulations. In an attempt to train ATAA H_, the command tried numerous assignments with different mentors, each attempt failing to correct his attitude and performance. During each assignment, ATAA H_ was counseled numerous times by his LPOS, Division Chiefs, and even the Command Master Chief. However, he chose to not listen to their advice, ultimately leading to XOI on 050225 [encl (4)]. He was formally counseled and given yet another opportunity to improve his attitude and performance.
ATAA H_ attended CO’s NJP on 050308 for violation of UCMJ Article 86 - absence without leave [encl (5)]. He was found guilty of unauthorized absence during the period of 050302-050307. Because of his pattern of misconduct, apathetic attitude toward self-improvement, and disregard for naval regulations, ATAA H_ was informed on 050308 through notification procedures that he would be processed for administrative separation from the U.S. Navy.
ATAA H_ was separated on 10 March 2005 under authority granted by MILPERSMAN 1910-140, Separation by Reason of Misconduct - Pattern of Misconduct, with a General characterization of service.”


PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20050310 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 equitable, but not proper (C and D).

For separation by reason of misconduct due to a pattern of misconduct, appropriate regulations require members to receive and violate a NAVPERS 1070/613 warning prior to administrative processing for separation. The evidence of record does not show that the Applicant was ever issued a retention warning and therefore was not eligible for separation by reason of misconduct due to a pattern of misconduct. Therefore, as a result of the impropriety, the Board voted to change the Applicant’s narrative reason for separation to “Secretarial Authority.” Partial relief granted.

The Applicant implies that his discharge is inequitable because he completed “three years and almost five months” of his enlistment. 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. 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 two nonjudicial punishment proceedings for violations of Articles 86, 92 and 107 of the UCMJ. Violations of Article 92 and 107 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. Relief is not warranted.

The Applicant contends that his discharge is improper because he expressed to his chain of command “how extremely unhappy” he was in the Navy. The Applicant further implies that his discharge is inequitable because he was going through a divorce at the time of separation. The evidence of record shows the Applicant was separated by reason of misconduct due to a pattern of misconduct. While the Applicant may feel that his marital situation or discontent with his enlistment 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 implies that his discharge should be changed to facilitate educational pursuits and civilian employment. The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Relief on this basis would be inappropriate.

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 25 April 2005, 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 or Article 107, false official statement.

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 .
D . Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .


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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction . You should read Enclosure (5) of the Instruction 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 Instruction 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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