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NAVY | DRB | 2006_Navy | ND0600825
Original file (ND0600825.rtf) Auto-classification: Denied


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

ex-MSSA, USN
Docket No. ND06-00825

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 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 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 Under Other Than Honorable Conditions by reason of misconduct due to a pattern of misconduct .


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
EQUITY – Personal issues and youth.
EQUITY – Post service-conduct.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 4) (2)
Resume
 VA Form 22-1995 (Request for Change of Program or Place of Training)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20001130 - 20001217       COG
          Active: None

Period of Service Under Review :
Date of Enlistment: 20001218              Date of Discharge: 20021126

Length of Service (years, months, days):

          Active: 0 1 11 0 8 (Does not exclude lost time )
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 6 day s
         Confinement:              None

Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 35

Highest Rate: MSSN

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2 . 5 ( 2 )              Behavior: 2 . 5 ( 2 )                           OTA: 2 . 43

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):

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

020221 :  NJP for violation s of UCMJ, Article 86 ( 3 specs): Unauthorized absence .
          Specification 1: On or about 0730, 011002, absent from his unit until 2120, 011003 .
         Specification 2: On or about 011007, without authority, absent himself from his unit until 011010 .
         Specification 3: On or about 0430, 011110, without authority, absent himself from his unit until 0733, 011111 .
         Award: R estriction and extra duty for 3 0 days (20 days suspended for 6 months) . No indication of appeal in the record.
020227:  Retention Warning: Advised of deficiency (CO’s NJP on 020221 for unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
020731:  NJP for violation of UCMJ, Article 128 : Assault.
         Specification : On or about 020624, a ssault ABE3 B_ H_ .
         Award: Forfeiture of $650.00 pay per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
0 20830 :  NJP for violation s of UCMJ .
         Article 86 ( 2 specs): Failure to go to appointed place of duty .
          Specification 1: On or about 020809, fail to go to appointed place of duty.
          Specification 2: On or about 020810, fail to go to appointed place of duty.
          Article 92 : Dereliction of duty .
          Specification: On 9 and 10 August, derelict in the performance of duty for failure to report to duty.
          Award: Confinement for 3 days on bread and water . No indication of appeal in the record.
021031 :  NJP for violation s of UCMJ .
         Article 91 : Insubordinate conduct .
         Specification: On or about 021017, was disrespectful in language toward a Petty Officer .
Article 107 : False official statement .
 Specification: O n or about 021017 , make a false official statement to Master-at-Arms.
Article 117 : Provoking speeches or gestures .
 Specification: O n or about 021017 wrongfully use provoking words.
         Article 128: Assault.
          Specification: On or about 021017, assault MM3 S_ O_.
         Article 134: Disorderly conduct .
          Specification : On or about 021017 , at sea, was disorderly, which conduct was prejudicial to good order and discipline.
Award: Forfeiture of $ 650. 00 pay per month for 2 month s , restriction and extra duty for 45 days, reduction to E- 2 . No indication of appeal in the record.
021031 :  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct pattern of misconduct and misconduct commission of a serious offense.

0 21031 :  Applicant advised of rights and having elected not to consult with counsel , elected to waive all rights .

021101 :  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct pattern of misconduct and misconduct commission of serious offense .
021103 :  GCMCA, COMC RUDESGRU THREE directed the Applicant's discharge under other than honorable conditions by reason of misconduct pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20021126 by reason of misconduct due to a pattern of misconduct (A and B) 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 (C and D).

An under other than 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. The Applicant’s service was marred by a retention warning and four nonjudicial punishment proceedings for violations of Articles 86, 91, 92, 107, 117, 128 and 134 of the UCMJ. The Applicant’s violations of Articles 91, 92, 107 and 128 of the UCMJ are serious offenses. 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 implies that his discharge is inequitable because he was going through personal problems at the time of his discharge and because he was young. While he may feel that his personal problems and immaturity 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 is inequitable due to his post-service conduct.
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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. 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 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 91, insubordinate conduct, Article 92, failure to obey order/regulation, Article 107, false official statement or Article 128, assault.

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 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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