DEPARTMENT OF THE NAVY
 NAVAL DISCHARGE REVIEW BOARD (NDRB)
                     DISCHARGE REVIEW
                   DECISIONAL DOCUMENT

 
ex-FR, USN
Docket No. ND03-01234

Applicant’s Request

The application for discharge review was received on 20030716.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20040514.  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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “My discharge was inequitable because it was based on incidents that I felt I was right and was punished wrongfully:

Violation of UCMJ Article 92-I did fall asleep, but I was taking medication for a earache giving to me by the doctor onboard.  It was known that I couldn’t stand a proper watch, but I was forced to anyway.

Violation of UCMJ Article 90-I stood that watch and was having problems communicating with the commissioned officer.  When asked to come to central unit I came and the officer was telling me that I don’t stand proper watches and asked me did I want to be in the Navy.  I responded saying I did not want to be in the navy any longer. He said he could hurry my process by sending me to Captains Mast, so I agreed because by this time I wanted out.

Violation of UCMJ Article 91-I was doing mess deck work at the time and the petty officer was doing mess deck work also.  He told me to swab the mess deck and I told him to do it because just because he was a petty officer he couldn’t make me do nothing.  While you all on mess deck duty that petty officer stuff doesn’t count.  So I told him “no” and gave him choice words for asking me to do so.

*Basically some of these charges I could have fought or appealed, but I wanted out so bad till I didn’t care what they were charging me with, long as the end result was being able to leave the navy.*”

Applicant marked the box indicating “additional issues attached” but none were found.

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

None

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive: USNR (DEP)	960508 - 961112	COG
	Active:  USN 			None

Period of Service Under Review:

Date of Enlistment:  961113		Date of Discharge:  981028

Length of Service (years, months, days):

	Active:    01  11  16
	Inactive:  None

Age at Entry:  19			Years Contracted:  3

Education Level:  11			AFQT:  39

Highest Rate:  FA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*	Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

*  No Marks Available

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events:

970826:	NJP for violation of UCMJ, Article 92: (2 Specifications), Failure to obey order or regulation; Specification 1 Having knowledge of a lawful order issued by IC3 A___ H___ to swab the mess decks, an order it was his duty to obey, did, on or about 970813, fail to obey the same, Specification 2: Having knowledge of a lawful order issued by STG1(SW) R___W. F___ to relieve or replace SR J___ J. E___ in the galley, an order it was his duty to obey, did, on or about 970813, fail to obey the same: violation of UCMJ, Article 91: (2 Specifications), Insubordinate conduct toward a Petty Officer, Specification 1: On or about 970813, was disrespectful in language toward RM3 T___ M___, a third class petty officer, who was then in the execution of his office, by saying to him, “Fuck you, you motherfuckers think just because you have a crow, you can tell people what to do, you ain’t worth a fuck, I can back up my shit, you motherfuckers talk a lot of shit, but won’t ever go outside the ship to back it up!” or words to that effect.
	Award: Restriction and extra duty for 30 days.  No indication of appeal in the record.

970828:	Retention Warning:  Advised of deficiency (On 970813, you failed to obey a lawful order issued by STG1(SW) F___ to swab the mess decks and were disrespectful in language towards RM3 M___), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

980616:	NJP for violation of UCMJ, Article 86: (2 Specifications), Absence without leave, Specification 1: On or about 0500, 980426 without authority fail to go at the time prescribed to his appointed place of duty the mess decks, Specification 1: On or about 0630, 980426 without authority fail to go at the time prescribed to his appointed place of duty the mess decks; violation of UCMJ, Article 91: Insubordinate conduct toward a Warrant Officer, NCO, Petty Officer, having knowledge of a lawful order issued by MS2 K___ S___, to report to the mess desks for duty, an order which it was his duty to obey, did on board USS NICHOLSON, Portsmouth, VA, on or about 0500, 980425, fail to obey the same by not knowingly ignoring the about prescribed lawful order. 
Award: Forfeiture of $500.00 pay per month for 2 months, correctional custody for 30 days.  No indication of appeal in the record.

980915:	NJP for violation of UCMJ, Article 92: (2 Specifications), Dereliction in the performance of duties, Specification 1: On or about 980827, was derelict in the performance of those duties in that he negligently fell asleep on watch as AUX monitor as it was his duty to do so which could have caused substantial damage to the engineering plant, Specification 2: On or about 980828, was derelict in the performance of those duties in that he negligently fell asleep on watch as AUX monitor as it was his duty to do which could have caused substantial damage to the engineering plant; violation of UCMJ, Article 90: (2 Specifications), Disobeying a Superior Commissioned Officer, Specification 1: Having received a lawful order from LT T__ S__, then known by the said to be his superior commissioned officer, to be the engineering officer of the watch, was ordered to stand a proper watch, or words to that effect, did on or about 980827, willfully disobey the same, Specification 2: Having received a lawful order from LT T__ S__, then known by the said to be his superior commissioned officer, to be the engineering officer of the watch, was ordered to stand a proper watch, or words to that effect, did on or about 980828; violation of UCMJ, Article 113: (2 Specifications), Misbehavior of sentinel, Specification 1: On or about 980827, on board USS NICHOLSON (DD-982) underway, being posted as AUX monitor was found asleep upon his post; Specification 2: On or about 980828, on board USS NICHOLSON (DD-982) underway, being posted as AUX monitor was found asleep upon his post.
	Award: Forfeiture of $520.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

980916:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

980916:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation 

981008:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by Commanding Officer’s NJP of 970826, 980610, and 980915.

981019:	Commander, Naval Surface Force, U.S. Atlantic Fleet directed the Applicant's discharge 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 19981028 under other than honorable conditions for misconduct due to a pattern of misconduct (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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).

Issue 1.   When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  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 three nonjudicial punishment proceedings for violations of the UCMJ, to include two violations of Article 86, two violations of Article 90, two violations of Article 91, four violations of Article 92 and two violations of Article 113.  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 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 other evidence related to his 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 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.
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 “afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023