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NAVY | DRB | 2006_Navy | ND0600929
Original file (ND0600929.rtf) Auto-classification: Denied


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

ex-SKSR(SW), USN
Docket No. ND06-00929

Applicant ’s Request
The application for discharge review was received on 20060706 . 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 20070426 . 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 - ISSUES AND DOCUMENTATION

Decisional Issues

Equity – Quality of service

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)     19970918 - 19970929       COG
         Active: None

Period of Service Under Review :
Date of Enlistment: 19970930              Date of Discharge: 20001108

Length of Service (years, months, days):

          Active: 03 01 09
         Inactive: None

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

Age at Entry: 18
Years Contracted: 4
Education Level: 12                                 AFQT: 37

Highest Rate: SK 3

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.5 ( 4 )                        Behavior: 1.5 ( 4 )                  OTA: 2 . 28

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Sea Service Deployment Ribbon , Navy “E” Ribbon, Sea Service Deployment Ribbon


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 :

980317:  Disciplinary Review Board (DRB). DRB convened to review charges that the Applicant violated UCMJ Article 86. No disciplinary action required at this time.       

980601:  Disciplinary Review Board (DRB). DRB convened to review charges that the Applicant violated UCMJ Article 92.

980605:  NJP for violation of UCMJ, Article 92: Violation of a lawful order.
         Award: R estriction and extra duty for 15 days. No indication of appeal in the record.
990218:  Counseling: Advised of deficiency (performance and personal behavior), notified of corrective actions and assistance available.
990221:  Disciplinary Review Board (DRB). DRB convened to review charges that the Applicant violated UCMJ Articles 89 and 117. The DRB recommends that the Applicant be sent to CCU, receive a reduction in rate, a fine of half pay for two months, with a suspension of the reduction in rate.

990224:  NJP for violation of UCMJ, Article 89: Disrespect towards a commissioned officer.
Violation of UCMJ, Article 117: Provoking speeches or gestures.
         Award: Forfeiture of $ 537.00 per month for 2 month s , correctional custody for 30 days, reduction to E- 1 . Reduction suspended for 6 months. No indication of appeal in the record.
UNDATED:         Counseling: Advised of deficiency (performance, personal behavior and responsibilities), notified of corrective actions and assistance available.

990804:  Counseling: Advised of deficiency (responsibilities), notified of corrective actions and assistance available.

990815:  Counseling: Advised of deficiency (performance), notified of corrective actions and assistance available.

000504:  Disciplinary Review Board (DRB). DRB convened to review charges that the Applicant violated UCMJ Article 92, failure to obey order or regulation, 2 counts, in that he failed to get a hair cut when ordered to do so by h is LCPO and while TA D to FISC, he made unauthorized use of the internet. The DRB recommends that the Applicant be removed from the ship and dismissal from the service at the earliest possible date.
000508:  NJP for violation of UCMJ, Article 91 (1/2 spec): Insubordinate conduct.
         Award: R estriction and extra duty for 45 days, reduction to E- 3 . Reduction suspended for 6 months. No indication of appeal in the record.
000516:  Retention Warning: Advised of deficiency (Nonjudicial punishment on 000508 for violation of UCMJ Article 91 (1/2) (Insubordinate conduct).), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 000518 :  NJP for violation of UCMJ, Article 92: Failure to obey lawful order.
Violation of UCMJ, Article 91: Disrespect toward Chief Petty Officer.
         Award: R estriction for 45 days, reduction to E- 3 . No indication of appeal in the record. Appeal denied: 000623.

000530 :  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.

000530 :  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.
000831 :  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed pattern of misconduct , that such misconduct warranted separation, and recommended discharge with a general (under honorable conditions).
001010 :  Commanding Officer , USS GUARDIAN (MCM 5) approved the Administrative Discharge Board’s findings and directed the Applicant ’s discharge with a general (under honorable conditions ) by reason of pattern of misconduct.



PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20001108 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 Board presumed regularity in the conduct of governmental affairs (E).
Equity – Quality of service: The Applicant contends that his discharge should be upgraded because he served his time honorably.
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, 4 counselings for deficiencies in performance and behavior, and 4 nonjudicial punishment proceedings for violations of Articles 89, 91, 92 and 117 of the UCMJ. Violations of UCMJ Articles 89, 91, and 92 are considered serious offenses 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 educational opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

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 18, effective
 12 Dec 1997 until 21 Aug 2002, 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, Articles 89 (disrespect towards superior commissioned officer), 91 (insubordinate conduct toward warrant, noncommissioned, petty officer), 92 (failure to obey orders, 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 .

 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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