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NAVY | DRB | 2006_Navy | ND0600541
Original file (ND0600541.rtf) Auto-classification: Denied


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

ex-FR, USN
Docket No. ND06-00541

Applicant’s Request
The application for discharge review was received on 20060308 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions . 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 20070110 . 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 ization 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 - ISSUES AND DOCUMENTATION

Decisional Issues :

Equity: Benefits
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 4)
Ltr from Board for Correction of Naval Records, D. L. K_, Head, Records Section, dtd October 25, 1996
 Ltr from Board for Correction of Naval Records, W. D_ P_, Executive Director, dtd November 25, 1996
Typing paper w/ notes

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19930301 - 19930321       COG
         Active: None

Period of Service Under Review :
Date of Enlistment: 19930322              Date of Discharge: 19950515

Length of Service (years, months, days):

          Active: 0 2 0 1 24
         Inactive: None

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

Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 35

Highest Rate: FA

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.9 ( 2 )     Behavior: 2.8 ( 2 )                 OTA: 2 . 96

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal .


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

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

940915 :  NJP for violation of UCMJ, Article 92: Dereliction in the performance of duties, 940824
Award: Forfeiture of $ 1 00 .00 pay per month for 1 month, restriction and extra duty for 15 days, reduction to E- 1 (suspended for 3 months) . No indication of appeal in the record.
940922:  Retention Warning: Advised of deficiency (Beginning pattern of misconduct as evidenced by your NJP on 940915 for Viol. UCMJ Art. 92, Dereliction of duty.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
950105:  NJP for violation of UCMJ, Article 86: Failure to go to appointed place of duty.
 Violation of UCMJ, Article 134: Drunkenness (incapacitation for performance of duties through prior wrongful indulgence in intoxicating liquors).
         Award: Forfeiture of $200.00 pay per month for 1 month, restriction and extra duty for 30 days, reduction to E-1 (suspended for 6 months). No indication of appeal in the record.
950105:  Retention Warning: Advised of deficiency (Misconduct as evidenced by your CO’s NJP on 950105 for violations of the UCMJ, Article 86- Failure to go to appointed place of duty; and Article 134- Drunkenness (incapacitation for performance of duties through prior wrongful indulgence in intoxicating liquor.) ) , notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

950210:  NJP for violation of UCMJ, Article 86 (7 Specs): Failure to go to appointed place of duty.
 Violation of UCMJ, Article 92 (2 Specs): Failure to obey other lawful order.
         Award: Forfeiture of $427.00 pay per month for 1 month, restriction and extra duty for 20 days. No indication of appeal in the record.
950210 :  R eduction in pay grade awarded at NJP on 950105 vacated due to continued misconduct.

950210 :  Applicant notified of intended recommendation for discharge with the characterization of service under other than honorable conditions by reason of misconduct due to pattern of misconduct as evidenced by C ommanding Officer ’s NJP’s on 950210, 950105, and 940915, during your current enlistment.

950210 :  Applicant advised of rights and having elec ted not to consult with counsel, elected to waive all rights except .

950216 :  Commanding Officer, USS TARAWA, recommended discharge under other than ho norable conditions by reason of misconduct due to a pattern of misconduct as evidenced by CO’s NJP’s on 950210, 950105, and 940915. Commanding Officer’s comments : “ FR C_ (Applicant)’s conduct has not been in keeping with the standards set forth for all Naval members. His repeated violations of the UCMJ mark an inability to maintain those standards. Attempts at counseling FR C_ throughout his chain of command have been ignored. FR C_ must be held accountable for his actions. I find that FR C_ has no potential for further Naval service. I strongly recommend separation with an other than honorable discharge. ”
950301 :  BUPERS directed the Applicant's discharge with under other than 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 19950515 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 ). The Board presumed regularity in the conduct of governmental affairs ( D ).
Equity – Benefits: The Applicant informs the Board that he “deserve some sort of benefits because of [the] suffering that [he] went through the last ten years.”

The Applicant is advised that 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 or enhancing employment and educational opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge. Since these issues do not serve to provide a foundation upon which the Board can grant relief, relief on this basis is not warranted.

When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as under other than honorable conditions 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. There is irrefutable evidence that the Applicant’s conduct during his time in the Navy was not honorable. Indeed, the Applicant’s records contain:
•         Nonjudicial punishment proceedings on 19940915 for violation of UCMJ Article 92 Dereliction in the performance of duties;
•         Retention warning entry on 19940922 for deficiencies in performance and conduct concerning a pattern of misconduct;
•         Nonjudicial punishment proceedings on 19950105 for violation of UCMJ Article 86 Unauthorized absence and Article 134 Drunkenness;
•         Retention warning entry on 19950105 for deficiencies in performance and conduct concerning misconduct as evidenced by CO’s NJP on 19950105; and
•         Nonjudicial punishment proceedings on 19950210 for violation of UCMJ Article 86 (7 specifications) Unauthorized absence and Article 92 (2 specifications) Failure to obey other lawful order.
 The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls well below that required for a characterization under honorable conditions. An upgrade would be inappropriate; therefore relief is 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 post-service accomplishments or any other evidence related to the discharge at that time. 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 9, effective
22 Jul 94 until 02 Oct 96), Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 .
D . Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .

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 ” .
Th e 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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