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

  ex-SKSR, USN
Docket No. ND05-00495

Applicant’s Request

The application for discharge review was received on 20050126.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing discharge review before a traveling panel closest to Dallas, TX.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington, D.C. Metropolitan area.  The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050511.  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/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

No issues were submitted by the Applicant.

Documentation

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

None were submitted.  

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	860825 - 870106	COG
	Active:   USN			870107 - 901206	HON

Period of Service Under Review:

Date of Enlistment:  901207		Date of Discharge:  930921

Length of Service (years, months, days):

	Active:    02  09  14
	Inactive:  None

Age at Entry:  22			Years Contracted:  4 

Education Level:  12			AFQT:  27

Highest Rate:  SK3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.12 (5)		Behavior:  3.04 (5)		OTA:  3.08

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, JMUA, AFEM, MUA(2), BATTLE”E”, GCA

Days of Unauthorized Absence:  25

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

901207:	Reenlisted on board USS ENTERPRISE (CVN-65) for 4 years.

901228:	UA from USS ENTERPRISE (CVN-65) at Newport News Shipyard.

901231:	Surrendered on board USS ENTERPRISE (CVN-65).

 910515:	Administrative Remarks:  Recommendation for advancement in rate to SK2 withdrawn this date.  Due to SK3 J_ ‘s [Applicant] lackadaisical performance in assigned duties and numerous performance deficiencies, including: a. Falling asleep while performing a desk job, b.  Arriving late for both morning quarters and at assigned place of duty after lunch, c. Taking longer than normal to complete assigned tasks, d. Requiring constant supervision to complete assigned tasks.  

910528:	NJP for violation of UCMJ, Article 134: False or unauthorized pass offenses.
	Award:  Forfeiture of $100.00 pay per month for 1 month, reduction to E-3 (suspended for 4 months).  No indication of appeal in the record.

910529:	Administrative Remarks:  Recommendation for advancement in rate to SK2 withdrawn this date.  Due to SK3 J_ ‘s [Applicant] lackadaisical performance in assigned duties and numerous performance deficiencies, including: a. Falling asleep while performing a desk job, b.  Arriving late for both morning quarters and at assigned place of duty after lunch, c. Taking longer than normal to complete assigned tasks, d. Requiring constant supervision to complete assigned tasks.  

910925:	Punishment of RIR to SKSN suspended at CO’s NJP of 910528 vacated due to continued misconduct.

920108:	NJP for violation of UCMJ, Article 92: Failure to obey order or regulation.
	Award:  Reduction to E-2 and 30 days extra duty (suspended for 4 months). No indication of appeal in the record.
 
920212:	Retention Warning:  Advised of deficiency (Poor job performance, lack of respect for authority and continual misconduct), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

920625:	Administrative Remarks:  Applicant signs following entry:  “I SKSA A_J_ III, USN , have been advised that I failed to meet the physical readiness standards of OPNAVINST 6110.1 due to obesity.  I have been examined by an authorized medical department representative and have no medical conditions that preclude me from meeting prescribed standards.  I will be enrolled in the command’s physical conditioning program.  I am aware of the adminst of the administrative actions for members who fail the official PRT, which are: not to be frocked and to have an EVAL/FITREP entry made.  If I fail the official PRT three consecutive times, I understand: I will not be recommended for advancement or promotion, any pending advancement or promotion will be delayed, I will not be frocked or eligible for reenlistment/retrention/redesignation/commissioning/continuation and shall be considered for separation from the Naval Service, I will have an EVAL/FITREP entry made, and I will not normally be eligible for RCS/TEMDUINS orders”. 

920727:	Administrative Remarks:  Applicant advised that he failed to meet the minimum health and physical readiness standards of OPNAVINST 6110.1 due to obsese.  Applicant assigned to the command’s Remedial Physical Training Program.  Applicant made aware that the administrative and statutory action for members who fail or exceed body fat standards include: no recommendation for promotion and possible administrative separation

930505:	Administrative Remarks:  Applicant advised that he failed to meet the minimum health and physical readiness standards of OPNAVINST 6110.1 due to obese.  Applicant assigned to the command’s Remedial Physical Training Program.  Applicant made aware that the administrative and statutory action for members who fail or exceed body fat standards include: no recommendation for promotion and possible administrative separation. 

930712:	Applicant to UA at 0701, 930712.

930721:	 Applicant from UA, surrendered to TPU Norfolk at 1530, 930721.

930723:	Applicant to UA at 1520, 930723.
	
930729:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 930723 (Manifest Intent) having been an unauthorized absentee since 1520, 930723 from ACU FIVE.  Applicant from UA, surrendered to TPU Norfolk at 1530, 930723.  While TPU Norfolk initiated check in procedures, TAD orders and return to ACU Five, SNM [Applicant] subsequently escaped from custody from custody at 1520, 930723 and has the following charges pending:  UCMJ Art 92 (failure to obey order/regulation); Art 95 (resisting apprehension/escape from custody), Art 127 (simple assault), Art 85/86 (UA/Escape from custody with intent to desert).

930806:	Report of Return of Deserter.  Applicant surrendered to military authorities on 930805 (0800) at ACU FIVE CAMP PENDLETON.  Returned to military control 930805 (0800).  Retained onboard for disciplinary action.

930810:	NJP for violation of UCMJ, Article 91: (3 Specs), Insubordinate conduct toward petty officer, violation of UCMJ Article 92: Failure to obey a lawful written order, violation of UCMJ Article 95: (2 Specs), Resisting apprehension and escape from custody, violation of UCMJ, Article 86: (2 Specs), Absence without leave.
	Award:  Forfeiture of $350.00 pay per month for 2 months, extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

930824:	Applicant notified of intended recommendation for administrative separation from the naval service by reason of misconduct due to a pattern of misconduct and the commission of a serious offense as evidenced by three punishments and a total of 10 violations under the UCMJ within the current enlistment.  If separation is approved, the characterization of service may be Other Than Honorable.

930824:	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.

930830:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and the commission of a serious offense as evidenced by three punishments and a total of 10 violations under the UCMJ within the current enlistment.  

930909:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930921 under other than honorable conditions for misconduct due to commission of a serious offense (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

The Applicant introduced no decisional issues for consideration by the Board.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted.  There is no evidence of impropriety or inequity in the Applicant’s discharge.  The Applicant’s misconduct is clearly documented.  Therefore, relief is denied.

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.  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.  During this period of enlistment, the Applicant’s service was marred by a retention warning and 3 nonjudicial punishment proceedings for violations of Articles 86 (UA for 25 days), 91 (3 specs of insubordinate conduct towards a Petty Officer), 92 (2 specs of failure to obey an order or regulation), 95 (2 specs of resisting apprehension and escape from custody), and 134 (false or unauthorized pass offenses) of the UCMJ. Violations of Articles 91, 92, 95, and 134 are considered serious offenses under 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 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 5, effective 
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Articles 91 (Insubordinate conduct toward a petty officer), 92 (Failure to obey an order or regulation), 95 (Resisting apprehension and escape from custody), and 134 (False or unauthorized pass offenses)  if adjudged at a Special or General Court-Martial

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

E.  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 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”.

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