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

FOR OFFICIAL USE ONLY

 ex-YNSA, USN
Docket No. ND05-00978

Applicant’s Request

The application for discharge review was received on 20050524.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable or to entry level separation or uncharacterized.  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 20051020.  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 and reason for 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

Applicant’s issues (arguments/contentions), as stated on the application:

“1.  I was so close to finishing my tour that it was unfair to give me a dad discharge and so warrant an upgrade to honorable.  My original EAOS was on Sep 17, 2003.  I was discharged on Sep 5, 2003.

2.  My record of NJP’s/Article 15’s indicate only isolated or minor offenses and so warrant an upgrade to honorable.  My NJP on the 4 Feb 00 was an article 94 for using the computer for none work purposes.  My NJP on 5 May 02 was an article 94 for staying out past liberty hours on a none duty day.  My NJP on 3 May 02 was 5 accounts of Article 86 in which more than half were dismissed.  And the total time from them was 96 minutes.

3.  The punishment I got was too severe compared with today’s standards and so warrant an upgrade to honorable.  After seeking counseling from a JAG officer and other personnel it was mentioned that my actions would have deserved at most a Commanding Officers NJP.

4.  The punishment I got at discharge was too harsh-it was much worse than most people got for the same offense and so warrant an upgrade to honorable.  Referring to MILPERSMAN 1910-304 Description of Characterization of Service under Assign of an Under Other Than Honorable it stats “Conduct involving one or more acts of omissions that constitute a significant departure from the conduct expected of members of naval service.  Examples of factors that may be considered include the use of force or violence to produce serious bodily injury or death, abuse of special position of trust, disregard by a superior of customary superior-subordinate relationships, acts or omissions that endanger the security of the United States or the health and welfare of other Service members of the military service, those punishable by punitive discharges, extended unauthorized absence, drug abuse and drug distribution.”  None of the above refer directly to the NJP’s for which I was charged.

5.  My discharge was based on many offenses, but they were mostly only minor offenses and so warrant an upgrade to honorable.

6.  My command abused its authority when it decided to discharge me and decided to give me a bad discharge, and so warrant an upgrade to honorable.  The mast was held at sea so there was no option for a fair hearing at a court martial.  I had opted for an Administrative Review Board to provide a fair hearing.  The Review Board was compiled of personnel from the command.  These personnel were under direct influence of the very chain of command that was discharging me from the service.  I therefore believe that I was not given a fair and unbiased review.”

Documentation

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

Applicant’s DD Form 214  (Member 4)
MILPERSMAN 1910-302, dtd Aug 22, 2002
MILPERSMAN 1910-304, dtd Aug 22, 2002  (2 pages)
Letter of Deficiency regarding the administrative from LT S_ W. W_, JAGC, USNR, Counsel for Respondent, dtd Aug 18, 2003  (3 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19990211 – 19990317		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19990318		Date of Discharge:  20030905

Length of Service (years, months, days):

	Active:    04  05  17
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  19 

Years Contracted:  4 (6 month extension)

Education Level:  12				AFQT:  54

Highest Rate:  YNSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (5)		Behavior:  1.80 (5)		OTA:  2.02 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Sea Service Deployment Ribbons (2), Navy Unit Commendation Medal, Navy “E” 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: 

000204:	NJP for violation of UCMJ, Article 92:  Failure to obey order or regulation.
	Award:  30 days CCU; reduction in rate (suspended 6 months) and oral reprimand.

000204:	Retention Warning:  Advised of deficiency (CO’s NJP held on this date for violation of the UCMJ, Art. 92 (Violating a Lawful Order).  Applicant failed to obey a lawful order issued by Senior Chief S_ by wrongfully using the Internet on divers occasions to access and view pornographic materials), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
	Applicant chose not to make a statement.

020505:	NJP for violation of UCMJ, Article 92:  Failure to obey order or regulation.
	Specification:  In that Yeoman Seaman A_ A_, U.S. Navy, Strike Fighter Squadron 147, having knowledge of lawful order issued by Commander B_ I_, Commanding Officer, that liberty for E-3 and below expired at 2400 on the pier in Fremantle, an order which it was his duty to obey, did, on or about 30 April 2002 fail to obey the same by being in Perth after 2400.
Award:  Forfeiture of ½ pay per month for 2 months (suspended for six months), reduction to E-2 (suspended for six months).  No indication of appeal in the record.

030605:	NJP for violation of UCMJ, Article 86 (5 Specs):  Absence without leave
Specification 1:  In that Yeoman Seaman A_ E. A_ (Applicant), U.S. Navy, strike Fighter Squadron147, did, on board USS CARL VINSON (CVN-70), on or about 2230, 3 May 2003, without authority, fail to go at the time prescribed to his appointed place of duty, to wit:  VFA-147 Admin for scheduled EMI, and did remain so absent until on or about 2230 to 2245, 3 May 2003.
Specification 2:  In that Yeoman Seaman A_ E. A_ (Applicant), U.S. Navy, strike Fighter Squadron147, did, on board USS CARL VINSON (CVN-70), on or about 0700, 4 May 2003, without authority, fail to go at the time prescribed to his appointed place of duty, to wit:  VFA-147 Admin, and did remain so absent until on or about 0935, 4 May 2003.
Specification 3:  In that Yeoman Seaman A_ E. A_ (Applicant), U.S. Navy, strike Fighter Squadron147, did, on board USS CARL VINSON (CVN-70), on or about 0700, 24 May 2003, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: duty section muster, and did remain so absent until on or about 0710, 26 May 2003.
Specification 4:  In that Yeoman Seaman A_ E. A_ (Applicant), U.S. Navy, strike Fighter Squadron147, did, on board USS CARL VINSON (CVN-70), on or about 0700, 26 May 2003, without authority, fail to go at the time prescribed to his appointed place of duty, to wit:  VFA-147 Admin, and did remain so absent until on or about 0720, 26 May 2003.
Specification 5:  In that Yeoman Seaman A_ E. A_ (Applicant), U.S. Navy, strike Fighter Squadron147, did, on board USS CARL VINSON (CVN-70), on or about 1520, 28 May 2003, without authority, fail to go at the time prescribed to his appointed place of duty, to wit:  VFA-147 Admin, and did remain so absent until on or about 1620, 28 May 2003.
	Award:  Forfeiture of $645.00 pay per month for 2 months, reduction to E-2.  No indication of appeal in the record.

030611:	Applicant notified of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct.  Applicant notified that the least favorable characterization of service possible is under other than honorable conditions.

030613:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

030813:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct, that such misconduct warranted separation, and recommended discharge with under other than honorable conditions.

030818:	Commanding Officer, Strike Fighter Squadron 147, recommended to the Commander, Carrier Group Three, Via Commander, Carrier Air Wing NINE, Applicant’s discharge with under other than honorable conditions by reason of pattern of misconduct.  Commanding Officer’s comments:  “YNSA A_ has zero potential for continued military service.  His three CO NJP’s by three separate commanding officers demonstrates a significant departure from the acceptable standards of honor, courage, and commitment.  Despite extensive verbal and written counseling, and more than enough chances to improve his behavior, he continues to be an administrative and discipline burden in the Navy.  Most strongly recommend administrative separation and approval of the Admin Board’s recommendation for an Other Than Honorable character of service.”

030819:	Commander, Carrier Air Wing Nine, forwarded recommending approval to Commander, Carrier Group Three, of the recommendations of the Commanding Officer and the Administrative Board.

030823:	Commander, Carrier Group Three, directed the Applicant's discharge with under other than honorable conditions by reason of misconduct due to pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030905 by reason of misconduct due to a pattern of misconduct (A) 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 (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

Issue 1.  The Applicant contends that his discharge was inequitable because it was given so close to the end of his active obligated service.  The evidence of record indicates that the Applicant’s separation was effected approximately two weeks prior to his end of active obligated service (EAOS).  The NDRB is aware of no law, stature, rule, regulation or instruction that prohibits a member from being administratively processed and separated because he is within a given timeframe of his EAOS.  The NDRB is aware of an administrative regulation forbidding a member from being involuntarily extended beyond his EAOS for administrative processing, however, this is not the Applicant’s situation.  

Issues 2 and 5.  The Applicant contends that he deserves an upgrade because his record of nonjudicial punishments consisted of isolated and minor offenses.  The Applicant’s service was marred by nonjudicial punishment on three separate occasions for violations of UCMJ, Article 92, failure to obey order or regulation, and Article 86, unauthorized absence.  A violation of UCMJ Article 92, failure to obey order or regulation is considered a serious offense and is punishable by punitive discharge if adjudicated at a general or special court-martial.  The Applicant’s contention that he has only committed “minor” misconduct is unfounded.  Relief denied.

Issues 3 and 4.  The Applicant contends that he deserves an upgrade because the punishment he received was “too severe compared with today’s standards” and much worse than what most people get for the same offenses.  The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  The Commanding Officer’s recommendation indicated that Applicant was given extensive verbal and written counseling and more than enough chances to improve his behavior.  Despite these opportunities, the Applicant was a continuing administrative and disciplinary burden upon his command and the United States Navy.  Based upon such evidence, the Board concluded that a preponderance of the evidence supports the conclusion that the Applicant committed a pattern of misconduct, that separation was appropriate, and that an under other than honorable conditions discharge was warranted.  As such, relief is denied.

Issue 6.  The Applicant contends that his discharge was improper because his command abused its authority in its decision to give him a bad discharge and he was not given a fair hearing at court-martial.  Additionally, the Applicant contends that the membership of his Administrative Discharge Board was under the direct influence of the chain of command discharging him and therefore he was not given a fair and unbiased review.  There is a presumption of regularity in the conduct of governmental affairs.  This presumption permits the Board to presume that the government’s agents acted in good faith, proceeded within the bounds of the law, and conformed their behavior to appropriate standards during the Applicant’s Naval service and subsequent administrative processing.  The Applicant bears the burden of establishing his issues through the presentation of substantial and credible evidence.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was in anyway improperly processed from the Naval service.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  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.  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.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

D.   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 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