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NAVY | DRB | 2006_Navy | ND0600808
Original file (ND0600808.rtf) Auto-classification: Denied


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

ex-AN, USN
Docket No. ND06-00808

Applicant’s Request
The application for discharge review was received on 20060526 . 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 20070322 . 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 .
The NDRB did note administrative error(s) on the original DD Form 214. Block 28, Narrative Reason for Separation, should read: “PATTERN OF MISCONDUCT,” and B lock 2 9 , Dates of Time Lost During This Period, shoul d read: “ TL – 20000828 – 20000829; 20000930 – 20001002; 20010113 – 20010116; 20020603 – 20020604; 20020607 – 20020610; 20020614 – 20020617; 20020627 – 20020721; 20020816 - 20020819 .” The Commander, Navy Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.


PART I - ISSUES AND DOCUMENTATION

Applicants Issues

The Applicant is requesting an upgrade to honorable for G.I. Bill benefits and for employment opportunities.

The Applicant claims his discharge was inequitable based on quality of service.

The Applicant is requesting an upgrade based on post service equity.

 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 (Member 1 and 4)
One page from applicant’s service record
Applicant’s Enlisted Aviation Warfare Specialist certificate, dated April 28, 2003
Applicant’s Turning the Hearts Center, Community Youth Mentor identification card
Applicant’s certificate from Remington College - San Diego Campus, dated Winter Quarter 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20000229 - 20000411       COG
         Active: None

Period of Service Under Review :
Date of Enlistment: 20000412              Date of Discharge: 20031126

Length of Service (years, months, days):

         Active: 0 3 0 7 15 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 22 days
         Confinement:              26 days

Age at Entry: 1 9

Years Contracted: 4
Education Level: 1 0                                  AFQT: 52

Highest Rate: AN

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NA*                                    Behavior: NA*              OTA: NA*
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Meritorious Unit Commendation, Armed Forces Expeditionary Medal, Sea Service Deployment Ribbon (2), Nat ional Defense Service Medal, Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal

* Not Available


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 :

000828:  Applicant to unauthorized absence at 0700.

 000829:  Applicant from unauthorized absence at 0800 (1 day/surrendered).
000930:  Applicant to unauthorized absence at 0700.

 001002:  Applicant from unauthorized absence at 0400 (1 days/surrendered).
001130:  Applicant on unauthorized absence at 0700-0815.

 010211:  NJP for violation of UCMJ, Article 86 : UA from unit 010114 to 010116 .
Violation of UCMJ, Article 92 : Violate a lawful general order, to wit: possessing two AFID cards.
         Award: Forfeiture of $ 435. 00 per month for 1 month, restriction and extra duty for 15 days, reduction to E- 2 . Forfeiture of $435.00 and reduction suspended for 90 days. No indication of appeal in the record.
010222:  Retention Warning: Advised of deficiency ( Unauthorized absence from unit on 010113-010116, and violate a lawful general order, to wit: possessing two AFID cards. ), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 010401:  NJP for violation of UCMJ, Article 86: UA from unit from 010313 to 010315.
         Award: Forfeiture of $ 2 00 .00 per month for 1 month, restriction and extra duty for 15 days . Restriction and extra duty for 7 days suspended for 42 days. No indication of appeal in the record.
010426:  R eduction in pay grade awarded at NJP on 010401 vacated due to continued misconduct.
010426:  NJP for violation of UCMJ, Article 134: Was at or near Perth, Australia, on or about 010418, drunk and disorderly, which conduct was of a nature to bring discredit upon the armed forces.
         Award: R estriction and extra duty for 45 days. No indication of appeal in the record.
010818:  NJP for violation of UCMJ, Article 86: UA from appointed place of duty, to wit: Liberty risk muster, 2200, 010812 and 2200, 010814.
         Award: Confinement on bread and water for 3 days. No indication of appeal in the record.
010818:  Applicant to confinement.

 010820:  Applicant released from confinement (2 days).
020215 :  NJP for violation of UCMJ, Article 86 ( 4 specs):
         Specification 1: UA from unit from 020206 until 020207.
         Specification 2: UA from unit from 020118 until 020124.
         Specification 3: UA from unit from 020115 until 020116.
         Specification 4: UA from appointed place of duty, V-1 Office, at 1230, 011222 until 1800, 011222.
 Violation of UCMJ, Article 91 : Disobey a lawful order from ABH1 J_ 020207.
         Award: Correctional custody unit for 30 days, forfeiture of $578.00 per month for 2 months . No indication of appeal in the record.
020603:  Applicant to unauthorized absence at 0700.

 020604:  Applicant from unauthorized absence at 0900 (1 day/surrendered).
020607:  Applicant to unauthorized absence at 0700.

 020610:  Applicant from unauthorized absence at 0700 (3 days/surrendered).
020614:  Applicant to unauthorized absence at 0700.

 020617:  Applicant from unauthorized absence at 0700 (3 days/surrendered).
020627 :  Summary Court-Martial.
         Charge I : violation of the UCMJ, Article 86 :
         Specification: UA from unit from 020409 until 020410.
         Charge II: violation of the UCMJ, Article 108:
         Specification: Willfully damage by kicking in a door of some value, military property of the United States, on or about 020415.
         Charge III: violation of the UCMJ, Article 128:
         Specification: Unlawfully assault AR M_, USN, by pushing him on the chest with his hands, on or about 020408.
         Charge IV: violation of the UCMJ, Article 134:
         Specification: Unlawfully enter the workcenter of Marine Strike Fighter Squadron THREE TWO THREE, on or about 020415.
         Finding: to Charges and the specifications thereunder, guilty.
          Sentence: Forfeiture of $770.00, confinement for 30 days.
          CA action 020627 : Sentence approved and ordered executed .

020627:  Applicant to confinement.

020721:  Applicant from confinement (24 days).
020816:  Applicant to unauthorized absence at 0500.

 020819:  Applicant from unauthorized absence at 0700 (3 days/surrendered).
031103:  NJP for violation of UCMJ, Article 86 ( 3 specs):
          Specification 1: UA from unit from 031013 until 031014.
         Specification 2: UA from appointed place of duty, line shop, at 1900, for general quarters 031027.
         Specification 3: UA from unit 031030 until 1330, 031030
 Violation of UCMJ, Article 107 : False official statement, made an entry in an official log that time enter was 0230, 031030, actual time approximately 1330, 031030.
Violation of UCMJ, Article 92 : Failure to obey order by Cdr S_ 031101.
         Award: Forfeiture of $ 764.00 per month for 2 month s , reduction to E- 2 . Forfeiture of $264.00 for 2 months and reduction suspended for 6 months . No indication of appeal in the record.
031211 :  C ommanding Officer notified Commander, Naval Personnel Command (PERS-83) of Applicant's discharge with a general (under honorable conditions) by reason of pattern of misconduct on 031126.

Service Record contains a partial Administrative Discharge package.
Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20031126 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). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (E).

The Applicant is requesting his characterization of discharge be upgraded to honorable based on quality of service . 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 one retention warning, 6 nonjudicial punishment proceedings for violations of Articles 86 (Unauthorized absence), 91 (Disobeying a lawful order) and 92 (Violation of a lawful general order). Additionally, the Applicant was referred to a summary court-martial for violation of Articles 86 (Unauthorized absence), 108 (Willfully damaging or destroying property), 128 (Assault), and 134 (Unlawful entry) of the UCMJ. 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 is requesting an upgrade to honorable for G.I. Bill benefits and for employment opportunities. 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. Relief is not warranted.

The Applicant is requesting an upgrade based on post service equity. 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 sufficient post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge. 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. 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), 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 s 91 (Disobey a lawful order) and 92 (Violation, failure to obey other order) .

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 .

 E. 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 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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