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

FOR OFFICIAL USE ONLY

  ex-BMSA USN
Docket No. ND05-01081

Applicant’s Request

The application for discharge review was received on 20050614.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area. Subsequent to the application, the Applicant requested a documentary record discharge review in lieu of a personal appearance hearing. The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060807.  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 - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and the attached letter:

“discharge was in violation of My Rights.”

“I am requesting a review of my separation from the navy.  If you find in my favor I am requesting the following:
1) to be re-instated back into the navy
2) to be re-instated as BM3

On august of 2004 I requested a transfer to another assignment.  I had been assigned to the USS Cole [sic] DDG67 since I left boot camp in 2001.  The person I asked said they will ask the new captain.  They told me that captain s_ denied my request.

September of 2004 I was in extreme pain with my legs and back.  I was at Portsmouth naval hospital when I missed the ship pulling out.  They put me on pain medication and told me I should get an MRI like Ortho wanted me to on September 3rd to see what was going on.

I reported to RSG administration office to work until my ship pulled back in.

I told doc what Ortho told me and said he can call them to check it out if he wishes to do so.  It took him almost 2 weeks to send me to Ortho.  He didn’t tell me it was a walk-in.  I do not think this was right on his part.

In September of 2004 I took the bm2 test and passed it but could not advance because they were not many openings for bm2 at that time.

In November of 2004 while the ship was out to sea I went to mass two times in one day.  I was not notified that I was going to mass until that day shortly before it was held.  It seemed to me that captain s_ was preoccupied during the proceedings.  He was looking all around the room.  I don’t believe he cared or even listened to anything I said.  I received the following as his judgment 45 days extra duty, 45 days restriction, lost of 1 pay grade, half months pay for 2 months suspended.

I went to mass the second time in the same day.  I was in pain and distraught over what happened to me. I didn’t hear a direct command given to me.  I wasn’t told about the second mass until right before.  I was a few minutes late.  I didn’t know who was the legal officer on the ship and I couldn’t go get legal advice on the base since I wasn’t aware of it until right before the mass was to be held.

On November 15 I went to the new DK and told her I didn’t get paid she said she will look into it.  I went to her several times after that when pay day came and I didn’t receive my pay.  I got the same thing from her I’ll look into it.  The last pay I received was on October 29, 2004

Captain s_ told me when he decided I should be separated that if I didn’t sign he’ll make my life miserable.  I signed the separation papers under duress.  He made me sign them first. I requested to make a statement.  I didn’t waive this right but wasn’t allowed to do so.  He sent the papers off before I could do so.  When I signed them I didn’t receive a copy of them until after I was back home.

I requested since January of 2005 a copy of my service record.  I have called veteran affairs and was told they are trying to locate them.  I called in may and was told they can’t find them.

When I left they gave me a few copies and what was in my file.  Another person’s info was given to me.  It listed when she was assigned to the ship and left.  How do I know someone else’s info wasn’t in my file that he made his judgment on someone else’s info addition to mine.

In conclusion I love being in the united states navy.  I was planning on making it a career.  I only ask you to please review my case.  I feel my rights were violated.  If you find in my favor I only want to be re-instated back in the navy, re-instated as BM3 and any of my back pay that I am due.”

Applicant’s Remarks:  (Taken from the DD Form 293 to the Board.):

“Discharge should be unacceptable since He did violate my Rights & Because I shouldn’t Have Been discharged until June 26 According to my enlistment papers I signed in 2001.”

Documentation

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

Ltr from National Personnel Records Center, dtd February 25, 2005
Applicant’s online statements from Navy Federal Credit Union  (10 Pages)
Applicant’s medical records (12 pages)
Administrative Separation Processing Notice – Notification Procedure, Page 1 of 2, dtd 	November 4, 2004 (2 copies)
Applicant’s Official Modification to Change Duty Orders, dtd October 22, 2001  (9 	pages)
Applicant’s Itinerary/Invoice, dtd October 25, 2001  (2 pages)
SK3 D_ E_ W_’s Official Modification to Change Duty Orders, dtd May 25, 2001  (8 	pages)
Applicant’s DD Form 214  (member 4)
Applicant’s DD Form 214  (member 1)
Ltr from Applicant, undated and not signed  (2 pages)
Evaluation Report and Counseling Record, dtd from October 12, 2001 to March 01, 	2002
Evaluation Report and Counseling Record, dtd from July 16, 2002 to February 01, 2003
Evaluation Report and Counseling Record, dtd from February 02, 2003 to July 15, 2003
Evaluation Report and Counseling Record, dtd from July 16, 2003 to February 29, 2004
Evaluation Report and Counseling Record, dtd from March 01, 2004 to June 15, 2004
Naval Education and training Professional Development and Technology Center, 	Examination Profile Information, Department of the Navy, (6 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20001031 - 20010625	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010626		Date of Discharge:  20041210

Length of Service (years, months, days):

	Active:    03  05  14  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None  
	Confinement:		  3 

Age at Entry:  18 

Years Contracted:  4 

Education Level:  12				AFQT:  31

Highest Rate:  BM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.2 (6)		Behavior:  2.2 (6)		OTA:  2.6

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy Expeditionary Medal, National Defense Service Medal, Global War on Terrorism Expeditionary Medal, 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: 

010302:	NJP for violation of UCMJ, Article 86: Absence without leave.
		Awarded: Restriction and extra duties for 30 days.

011217:	Record of Counseling.  Reason for counseling:  responsibilities. (On the morning of 17 Dec SN V_ [Applicant] failed to appear for quarters and was late for duty sec. turnover.  SN V_ has been late for various functions and has been verbally warned numerous times.)  Corrective actions and sources of assistance provided.

020202:	Record of Counseling.  Purpose of counseling: performance, responsibilities, unauthorized absence.  (SNM [Applicant] failed to muster for quarters on 2 Feb 02 at 0730.)  Corrective actions and sources of assistance provided.

020206:	Record of Counseling.  Purpose of counseling: performance, responsibilities.  (On 6 February 02, SN V_ [Applicant] failed to report to the work center.)  Corrective actions provided.

020301:	Applicant received NAVPERS 1070/613 warning.  [Extracted from CO, USS COLE letter 041213.]

020503:	Record of Counseling.  Purpose of counseling: performance, unauthorized absence.  (SA V_ [Applicant] was late on 3 May 2002 and missed liberty expiration due to traffic.)  Corrective actions provided.

020511:	Record of Counseling.  Purpose of counseling: performance, unauthorized absence.  (SA V_ [Applicant] was late on 11 May 02 and missed liberty expiration, and duty section muster.)  Corrective actions provided.

021028:	Record of Counseling.  Purpose of counseling: late for work. (On 28 Oct 02 SN V_ [Applicant] was late.  Came aboard at 0700 liberty expired at 0630.)  Corrective actions provided.

030310:	Record of Counseling. Reason for counseling: Other. (Late for liberty expiration on 10 Mar 03.)  Corrective actions provided.

030423:	Record of counseling.  Reason for counseling: UA. (At 0630 Tuesday 22 April 2003. SN V_ [Applicant] was late reporting for duty until 1045.)  Corrective actions provided.

030426:	NJP for violation of UCMJ, Article 86: In that Seaman E_ M. V_ , (Applicant) USS COLE (DDG 67), did, on or about 0630, 22 April 2003, without authority, absent herself from her place of duty at which she was required to be, to wit: USS COLE (DDG 67), located at Norfolk, VA and did so remain so absent until on or about 1045, 22 April 3002. 
	Award:  Restriction and extra duties for 30 days, reduction in rank to E-2. (Reduction in rank suspended for 6 months).  Not appealed.

030811:	Applicant received NAVPERS 1070/613 warning.  [Extracted from CO, USS COLE letter 041213.]

040824:	Record of Counseling:  Purpose of counseling: quality of work, military bearing/character personal job accomplishment/initiative, teamwork, leadership. (Dereliction to duty, on 24 August 2004 BM3 V_ [Applicant] was late for clampdown, after being located in berthing was instructed to bring SN M_ and M_ up on deck with her, at which time she reported that they were not in berthing, BM3 H_ went to berthing and found to two missing SN.)  Corrective actions provided.  

041021:	NJP for violation of UCMJ, Article 86: In that BM3 E_ M. V_ (Applicant), USS COLE (DDG 67), did, on or about 0600 20 September 2004, without authority, absent herself from her place of duty at which she was required to be, to wit: USS COLE (DDG 67), located at Norfolk, VA and did remain so absent until on or about 1500, 22 September 2004.
Violation of UCMJ, Article 87: In that BM3 E_ M. V_ (Applicant), did on board USS COLE DDG 67, Norfolk, VA, on or about 20 September 2004, through neglect miss the movement of USS COLE DDG 67 with which she was required in the course of duty to move.  
	Award:  Forfeiture of $438.50 pay per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

041021:	NJP for violation of UCMJ, Article 92:  Specification I: In that BMSN E_ M. V_ (Applicant), while on active duty, did, on board USS COLE DDG 67, on or about 21 October 2004, having knowledge of a lawful order issued by CMDC C_ to stand at parade rest, an order which it was her duty to obey, did no board USS COLE DDG 67 on or about 21 October 2004, fail to obey the same by not standing at parade rest.
Specification II:  In that BMSN E_ M. V_ (Applicant), while on active duty, did, on board USS COLE DDG 67, on or about 21 October 2004, having knowledge of a lawful order issued by YN1 J_ to stand at parade rest, an order which it was her duty to obey, did on board USS COLE DDG 67 on or about 21 October 2004, fail to obey the same by wrongfully not standing at parade rest.  
Specification III:  In that BMSN E_ M. V_ (Applicant), while on active duty, did, on board USS COLE DDG 67, on or about 21 October 2004, having knowledge of a lawful order issued by MA1 P_ to stand at attention, an order which it was her duty to obey, did on board USS COLE DDG 67 on or about 21 October 2004, fail to obey the same by wrongfully not standing at attention.
	Award:  Reduction to E-2.  Confinement for 3 days. No indication of appeal in the record.

041021:	Suspended forfeiture of $438.50 pay per month for 2 months vacated due to continued misconduct.

041022:	Applicant undergoes confinement physical.  Fit for confinement.

041104:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct-pattern of misconduct. 

041104:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation and the right to submit a written statement.

041210:	DD Form 214: Applicant discharged this date by reason of a pattern of misconduct with a characterization of General (Under Honorable Conditions).

041213:	Commanding Officer, USS COLE notifies the Commander, Carrier Strike Group TWELVE, that the Applicant was discharged on 041210.  CO’s comments: “ BMSA V_ (Applicant) is a substandard Sailor and has no future in the Naval Service.  Her constant propensity to disobey Navy regulations is not conducive to good order and discipline onboard USS COLE.  I hereby separate BMSA V_ from the Navy with her service characterized as General.“

	Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20041210 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 available 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).

In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.  Specifically, Applicant alleged that her Commanding Officer forced her to sign the administrative separation notification under duress, and that she was denied the right to submit a written statement to the separation authority. The record, however, contains no evidence of any wrongdoing by the Commanding Officer or anyone else involved in the discharge process.  The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary.  As such, this Board presumed that Applicant’s discharge was regular in all respects.  Relief 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.  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 four nonjudicial punishment proceedings for violations of Articles 86 (2 specs), 87, and 92 (3 specs) of the UCMJ.  Violations of UCMJ Articles 87 and 92 are considered serious offenses, for which punitive discharges are authorized by courts-martial.  In addition, the Applicant was counseled on 9 occasions for her unsatisfactory performance, unauthorized absences, failure to make muster, and military bearing.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her failure to meet the requirements of her contract with the U.S. Navy and falls short of that required for an upgrade of her characterization of service.  Relief is not warranted.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  Reenlistment policy of the naval service is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.   

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), re-issued October 2002, effective 22 Aug 2002 until 25 April 2005, 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 87 – missing movement, and Article 92 – failure to obey order or 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 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