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

FOR OFFICIAL USE ONLY

ex-FA, USN
Docket No. ND06-00468

Applicant’s Request

The application for discharge review was received on 20060210.  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 20061130.  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 by reason of misconduct due to commission of a serious offense.

PART I – DECISIONAL ISSUES AND DOCUMENTATION

Issues

EQUITY – Punishment disproportionate for offense(s)
EQUITY – Youth and Immaturity
EQUITY – Post 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)
Applicant’s DD Form 214 (Service 2)
Applicant’s DD Form 214 (Member 1)
Character Reference ltr from LN3 S_ C_, undated, unsigned
Statement from AN J_ D_, undated, unsigned
Certificate of Completion for Firefighter I/Firefighter II (Minimum Standards) NFPA 1001-450 Hours from Lake Technical Center Institute of Public Safety, dated
January 11, 2006
Document entitled “Printout of Test Scores”
Certificate of Completion for First Responder 40 hour course from Lake Technical Center Institute of Public Safety, dated September 3, 2005
Certificate of Completion for Wild Land Firefighting 8 hour course from Lake Technical Center Institute of Public Safety, dated November 5, 2005
Certificate of Completion for Prepare Florida/ICS –Basic WMD-Florida’s Operations Guide to Terrorism 8 hour course from Lake Technical Center Institute of Public Safety, dated November 17, 2005
Certificate of Completion for Rescue & Extrication 16 hour course from Lake Technical Center Institute of Public Safety, dated November 19, 2005
Certificate of Completion for Hazardous Materials Awareness 24 hour course from Lake Technical Center Institute of Public Safety, dated December 7, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20030430 - 20030817	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20030818		Date of Discharge:  20040827

Length of Service (years, months, days):

	Active:    01  00  09  (Does not exclude lost time)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  5 days
	Confinement:		  None

Age at Entry:  18 

Years Contracted:  4 

Education Level:  12				AFQT:  44

Highest Rate:  FA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*			Behavior:  NA*		OTA:  NA*

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

* Not Available

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events: 

xxxxxx:	Violation of UCMJ, Article 134: Altering Military ID card O/A 040320.
Member given 30 hours of EMI, Charge was dismissed at XOI.  [Extracted from Report and Disposition of Offense(s) dated 040611]. 

040602:	Applicant to unauthorized absence on 040602.

040607:	Applicant from unauthorized absence on 040607 (5 days).

040624:	NJP for violation of UCMJ, Article 86: UA O/A 040602 until 040607.
	Award:  Forfeiture of $100.00 pay per month for 1 month, restriction for 45 days.  No indication of appeal in the record.

040624:	Retention Warning:  Advised of deficiency (Non-Judicial Punishment for VUCMJ, Article 86), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

040717:	NJP for violation of UCMJ, Article 109: In that Fireman Apprentice D_ B. R_ (Applicant), U.S. Navy, USS JOHN F. KENNEDY, on active duty, at or near Best Inn, Neptune Beach, Florida, on or about 040602, willfully and wrongfully damage by breaking various items in the room and pouring various liquids on items in the room, the amount of said damage being the sum of about $500.00, the property of Best Inn, Neptune Beach, Florida.
Violation of UCMJ, Article 130: In that Fireman Apprentice D_ B. R_, U.S. Navy, USS JOHN F. KENNEDY, on active duty, at or near Best Inn, Neptune Beach, Florida, on or about 040602, unlawfully enter a room, the property of Best Inn, with intent to commit a criminal offense, to wit: wrongfully obtaining services, therein.
Violation of UCMJ, Article 134: In that Fireman Apprentice D_ B. R_, U.S. Navy, USS JOHN F. KENNEDY, on active duty, was, at or near Best Inn, Neptune Beach, Florida, on or about 040602, disorderly by rubbing shoe polish and body waste on the bathtub and shower walls, which conduct was of a nature to bring discredit upon the armed forces.
Violation of UCMJ, Article 134: In that Fireman Apprentice D_ B. R_, U.S. Navy, USS JOHN F. KENNEDY, on active duty, did, at or near Best In, Neptune Beach, Florida, on or about 040602, in writing communicate to Ms S_ M_ a civilian, certain indecent language, to wit: Huge letters spelling out “SLUT” on the padded leather headboard and “F.U.” after signing a credit card receipt.
	Award:  Forfeiture of $693.00 pay per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

040722:	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 and misconduct commission of a serious offense.

040722:	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.

040802:	Commanding Officer, USS JOHN F. KENNEDY (CV 67), recommended discharge under other than honorable conditions by reason of misconduct pattern of misconduct and commission of a serious offense.  Commanding Officer’s comments:  “At a recent nonjudicial punishment proceeding, Fireman Apprentice R_ (Applicant) was found in violation of Article 109-destruction of private property; Article 130-housebreaking; Article 134-disorderly conduct; and Article 134-indecent language.  He was previously awarded nonjudicial punishment for violation of Article 86-unauthorized absence.  He also violated his Page 13 Administrative Counseling/Warning issued to him after his first nonjudicial punishment.  At least one of these offenses meets the MILPERSMAN’s definition of a “serious offense”.  This type of behavior demonstrates a complete lack of respect for good order and discipline and a disregard for the welfare of his shipmates.  As FA R_ does not contest this separation, I strongly recommend he be separated from the naval service under Other Than Honorable conditions for misconduct due to a pattern of misconduct and commission of a serious offense.”

040807:	GCMCA, Commander, Carrier Group SIX, directed the Applicant's discharge under other than honorable conditions by reason of misconduct commission of a serious offense.

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 20040827 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of 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 (C and D).  The Board presumed regularity in the conduct of governmental affairs (E).

The Applicant implies that his discharge is inequitable because the punishment he received was too severe.  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 extra-military instruction, a retention warning and two nonjudicial punishment proceedings for violations of Articles 86, 109, 130 and 134 of the UCMJ.  The Applicant’s violations of Article 134 of the UCMJ for false or unauthorized pass and communicating indecent language are serious offenses.  Violations of Articles 109 and 130 of the UCMJ are also serious offenses.  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.  Additionally, for the edification of the Applicant, the Applicant’s discharge is considered administrative and not punitive in nature.  Relief is not warranted.

The Applicant contends that his discharge is inequitable due to his youth and immaturity during his enlistment.  The Applicant also implies in his statement to the Board that he was not responsible for all of the infractions of the UCMJ for which he was awarded nonjudicial punishment.  While he may feel that immaturity was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for the conduct for which he was awarded punishment or that he should not be held accountable for his actions.  Relief denied.

The Applicant implies that his discharge should be changed due to his post-service achievements and in order to facilitate civilian employment.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service and certification of non-involvement with civil authorities.  The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  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 02 until 25 April 2005, Article 1910-142 [formerly 3630605], SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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 109, damage other than military property, Article 130, housebreaking, Article 134, communicate indecent language or Article 134, false or unauthorized pass.

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