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NAVY | DRB | 2006_Navy | ND0600520
Original file (ND0600520.rtf) Auto-classification: Denied


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

ex-FA, USN
Docket No. ND06-00520

Applicant ’s Request
The application for discharge review was received on 20060302 . 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 20061214 . 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
No issues were submitted by the Applicant .

 Applicant’s Remarks: (Taken from the DD Form 293.)
“ I have been in the Army National Guard since January, 1999, have received three DD-214’s with an honorable discharge and deployed to Iraq for 12 months in support of Operation Iraqi Freedom III. I would like the opportunity to use the Montgomery G.I. Bill to pay for the Associate of Applied Science in Electrical Engineering that I am studying for at the Hallmark Institute of Technology in San Antonio, TX. ”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant , was considered:
Applicant ’s United States Navy D D Form 214 for period August 13, 1991 to September       28, 1993
Applicant’s Army National Guard DD Form 214 for period November 24, 2000 to      March 1, 2001
 Applicant ’s Army National Guard DD Form 214 for period March 9, 2001 to November         3, 2001
 Applicant ’s Army National Guard DD Form 214 for period September 20, 2004 to     December 29, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19900927 – 19910812       COG
         Active: None

Period of Service Under Review :
Date of Enlistment: 19910813              Date of Discharge: 19930928

Length of Service (years, months, days):

          Active: 0 2 0 1 16
         Inactive: None

 Time Lost During This Period (days):

         Unauthorized absence: None
         Confinement:              None

Age at Entry: 18

Years Contracted: 4 ( 24 -month extension)

Education Level: 12                                 AFQT: 80

Highest Rate: FN

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.1 ( 3 )               Behavior: 3.0 ( 3 )                  OTA: 3.07

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214 ): National Defense Service Medal, S outhwest Asia Service Medal, S ea Service Deployment Ribbon , Joint Meritorious Unit Award, Armed Forces Expeditionary Medal


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

GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority: MILPERSMAN, Article 3630600.
Chronological Listing of Significant Service Events :

920428:  Applicant on unauthorized absence 0630 to 1140, 920428.
920507:  Applicant on unauthorized absence 0630 to 1030, 920507.
920511:  Applicant on unauthorized absence 0630 to 1030, 920511.
920512:  Applicant on unauthorized absence 0630 to 1030, 920512.
920528:  NJP for violation of UCMJ, Article 86:
          Specification 1: On or about 0630, 920428, without authority, absent himself from his unit until on or about 1140, 920428.
         Specification 2: UA fm 0630, 920507 to 1030, 920507.
         Specification 3: UA from 0630, 920511 to 1030, 920511.
         Specification 4: UA from 0630, 920512 to 1030, 920512.
         Charge II: Violation of UCMJ Art. 91:
         Specification: On or about 1245, 920514 was disrespectful in language toward a Third Class Petty Officer who was in the execution of his office.
          Award: R estriction and extra duty for 25 days. No indication of appeal in the record.
920605:  Retention Warning: Advised of deficiency (Violated Article 86 of the UCMJ, unauthorized absence from USS TRIPOLI (LPH 10) from 0630, 920428 to 1140, 920428; 0630, 920507 to 1030, 920507; 0630, 920511 to 1030, 920511 and 0630, 920512 to 1030, 920512. Applicant also violated Article 91 of the UCMJ, disrespectful in language to a Third Class Petty Officer in the performance of duty.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 930322:  Applicant was brought aboard with multiple injuries. Applicant while operating a motorcycle, was involved in an accident. [Extracted from Master-At-Arms, USS TRIPOLI (LPH-10), Daily Police Desk Journal dated 930322.]



930402:  NJP for violation of UCMJ, Article 92: Fail to obey a written order issued by XO of USS TRIPOLI (LPH 10) not to rent and/or ride motorcycles in Phuket, Thailand.
         Award: Forfeiture of $ 457. 00 per month for 2 month s , restriction and extra duty for 45 days, reduction to E- 2 . No indication of appeal in the record.

 930426:  Report and disposition of offense(s):
         Charge: Violation of UCMJ Article 86 - Failure to go.
         Specification 1: In that E_ E_ S_, Fireman Apprentice, USN, while on active duty, USS TRIPOLI (LPH-10), did, on or about 9615, 930403, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Hangar Bay for restricted men’s muster.
          Specification 2: : In that E_ E_ S_, Fireman Apprentice, USN, while on active duty, USS TRIPOLI (LPH-10), did, on or about 2130, 930403, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Hangar Bay for restricted men’s muster.
         Specification 3: : In that E_ E_ S_, Fireman Apprentice, USN, while on active duty, USS TRIPOLI (LPH-10), did, on or about 1630, 930418, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Hangar Bay for restricted men’s muster.
          Specification 4: : In that E_ E_ S_, Fireman Apprentice, USN, while on active duty, USS TRIPOLI (LPH-10), did, on or about 1200, 930425, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Hangar Bay for restricted men’s muster.
         Applicant volunteered to be extended on restriction and extra duty in lieu of NJP. Dismissed.

 93052 7:  NJP for violation of UCMJ, Article 86:
         Specification: On or about 0715, 930506, without authority, fail to go to restricted muster in the hangar bay.
         Specification 2: 1200, 930516.
         Specification 3: 0715, 930516.
         Specification 4: 0715, 930522.
         Award: Restriction and extra duty for 20 days. No indication of appeal in the record.
930616:  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 a pattern of misconduct as evidenced by as evidenced by your Commanding Officer’s Nonjudicial Punishment on board USS TRIPOLI (LPH 10) of 920528, violation of the UCMJ, Article 86, Spec 1: UA from unit from 0630, 920428 until 1140,920428; Spec 2: UA from unit from 0630, 920507 until 1030, 920507; Spec 3: UA from 0630, 920511 until 1030, 920511 and Spec 4: UA from unit from 0630, 920512 until 1030, 920512. Violation of the UCMJ, Article 91, Spec: On or about 920514 was disrespectful in language toward a Third Class Petty Officer who was in the performance of his office. Your Commanding Officers Nonjudicial Punishment on board USS TRIPOLI (LPH 10) of 930402, violation of the UCMJ, Article 92, Spec: On or about 920321, fail to obey a lawful order issued by the XO of USS TRIPOLI (LPH 10) not to rent and/or drive motorcycles in Phuket, Thailand. Your Commanding Officer’s Nonjudicial Punishment on board USS TRIPOLI (LPH 10) of 930527, violation of the UCMJ, Article 86, Spec 1: On or about 0715, 930506, without authority, fail to go to restricted muster in the hangar bay; Spec 2: 1200, 930516; Spec 3: 0715, 930516 and Spec 4: 0715, 930522. Additionally, you are being processed for misconduct due to commission of a serious offense as evidenced by your Commanding Officer’s Nonjudicial Punishment on board USS TRIPOLI (LPH 10) of 930402, violation of the UCMJ, Article 92, spec: On or about 920321, fail, to obey a lawful order issued by the XO of LJSS TRIPOLI (LPH 10) not to rent and/or drive motorcycles in Phuket, Thailand.

930628 :  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.
930910 :  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense , that such misconduct warranted separation, and recommended discharge with a general (under honorable conditions).
930914 :  Commanding Officer, USS TRIPOLI (LPH 10) , recommended discharge with a general (under honorable conditions ) by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense . Commanding Officer’s comments : “ Forwarded, recommending approval of the Board’s findings and recommendations. ”
930922 :  BUPERS, directed the Applicant 's discharge with a general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.



PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19930928 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 proper and equitable (C and D).

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. 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 a retention warning and 3 nonjudicial punishment proceedings for violations of Articles 86 (UA), 91 (Contempt, disrespect toward other noncommissioned or petty officer), and 92 (Failure to obey order, regulation) and of the UCMJ. Violation of UCMJ Article 92 is considered a serious offense for which a punitive discharge is authorized if adjudged by a 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 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 of the propriety and equity of the discharge.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered. The Applicant provided three DD FORM 214’s from his service with the National Guard as documentation of post-service accomplishments. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities. The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge. Therefore, no relief will be granted.

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 5, effective 05 Mar 93 until 21 Jul 94), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A 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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